In this episode of Children First Family Law, Krista welcomes Judge Bruce Cohen, a distinguished figure in family law with more than 40 years of experience.
Judge Cohen shares his extensive knowledge and unique perspectives from serving in the Maricopa County court system in Arizona, the fourth largest in the United States. With a career that spans from being a young lawyer to a seasoned judge appointed by Governor Janet Napolitano in 2005, Judge Cohen discusses the intricacies of family law, particularly focusing on the delicate balance between the well-being of children and Constitutional rights to parent.
Throughout the conversation, Judge Cohen offers a deep dive into the challenges judges face, especially those new to the family law arena. He provides insights into parenting time and decision-making complexities, where terms like “best interests” are often debated. Additionally, Judge Cohen’s innovative approaches to promoting healthy co-parenting and enhancing self-representation bring a fresh perspective to resolving family disputes.
We also explore Judge Cohen’s experiences and reflections from the AFCC Conference in Boston, underscoring the shared commitment to improving family law practices. His passion for guiding families toward constructive resolutions and focusing on the well-being of children is evident throughout the discussion.
Join us for a thought-provoking episode enriched by Judge Cohen’s insights and dedication to advancing family law practice.
In this episode, you will hear:
- Judge Bruce Cohen on balancing child well-being with Constitutional rights and court principles
- Insights into the challenges of early intervention in cases involving domestic violence or mental health issues
- An exploration of the complexities and nuances of parenting time and decision-making
- Judge Cohen’s journey and experience in family law, emphasizing the importance of training and support for judges
- Promoting healthy co-parenting and addressing challenges in family law dynamics
- Innovative approaches to simplifying legal proceedings for self-represented litigants in family law courts
- Ethical dilemmas attorneys face, emphasizing guiding clients toward constructive resolutions
Resources from this Episode
www.childrenfirstfamilylaw.com
All states have different laws; be sure you are checking out your state laws specifically surrounding divorce. Krista is a licensed attorney in Colorado and Wyoming but is not providing through this podcast legal advice. Please be sure to seek independent legal counsel in your area for your specific situation.
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“Best Interests of Children” & Constitutional Rights to Parent: A Conversation with Arizona Judge Bruce Cohen Podcast Unedited Transcript
0:00:00 – Judge Bruce Cohen
We have different categories of cases. You have cases where there has been domestic violence or child abuse or substance abuse or mental health issues, and when I say that I mean diagnosed mental health issues. They all require individual treatment, but the average case is made up of parents who have strengths and weaknesses, and these policies should be directed towards those cases. What to do with the other cases takes us into a whole other direction, and the biggest problem in all those other cases is there may be allegations that something occurred, but is there proof that it actually did occur?
I, as the judge, could suspect that there’s some credibility here and I think something nefarious has gone on within the family dynamic. There’s disproportionate power, there’s control or there’s just out-and-out abuse. But if it’s not been proven, we’re a court of law that bases our rulings on evidence. So what do you do when your visceral reaction says there’s something squirrely here, but it hasn’t been proven? Do we go ahead and limit a parent’s access when they have these constitutional rights? So I think what’s important is to first, at the early stage, differentiate between those cases where there’s just ordinary people who have their strengths and weaknesses and our job is to try to help guide them going forward versus those cases that require more intervention, that have deeper issues that need to be analyzed and part of the plan to protect the child.
0:01:38 – Intro/Outro
Welcome to the Children First Family Law Podcast. Our host, krista Nash, is an attorney, mediator, parenting coordinator and child advocate with a heart to facilitate conversations about how to help children flourish amidst the broken area of family law. As a child advocate in demand for her expertise throughout Colorado and as a speaker on these issues at a national level, krista is passionate about facilitating and creatively finding solutions to approach family law matters in a way that truly focuses on the best interests of kids. Please remember this podcast is provided to you for information purposes only. No one on this podcast is representing you or giving you legal advice. As always, please enjoy this episode and be sure to like, subscribe and share the podcast with others you think would benefit from this content.
Today we have Judge Bruce Cohen joining us from Arizona, where he has more than 40 years experience working extensively in family law courts, first as a lawyer and now for decades as a judge in Maricopa County, the fourth largest court system in the United States.
Among his wide-ranging experience is the training of law students and judges, co-authoring mandatory parental education in divorce cases and widespread thought leading on ways to do divorce better for children. Judge Cohen also has an international presence in the betterment of family law across the globe. Having been part of a program that facilitates the sharing of best practices of judges from a wide array of diverse countries, krista and Judge Cohen were featured speakers together at a national conference where they spoke to an international audience of judicial officers, lawyers and mental health professionals on current trends in family courts in the United States. Judge Cohen may be a recurring guest, with all of the places he impacts within family law, but for today, we focus on balancing the best interests of children with the other important court principles. Judge Cohen may be a recurring guest, with all the places he impacts within family law, but for today, we focus on balancing the best interests of children with other important court principles.
0:03:58 – Krista Nash
I’d like to welcome today with us on the show Judge Bruce Cohen, who is on the bench in Arizona. Judge Cohen, welcome. Thank you. I’m so glad to have you with Arizona. Judge Cohen welcome. Thank you, I’m so glad to have you with us. I appreciate so much you being here. Judge Cohen has a wealth of information to bring us about his own experience thinking about and working on family law cases and also has I’ve just recently learned some interesting insight to bring in terms of international views on this, since he’s been working with international I don’t know, I guess we’d say programs on trying to understand domestic situations worldwide. So welcome, and I think we just start maybe with you telling us a little bit about yourself, and maybe I think people are always interested in how you got to the bench, what you did before this.
Background of Judge Bruce Cohen
0:04:40 – Judge Bruce Cohen
All right. I graduated from law school in the dark ages, 1981. We used to take our notes with a chisel and a stone, I bet, but very quickly gravitated towards family law early in my career and by the second or third year of my career practicing law, I was working almost exclusively in the area of family law. Did that for about 24 years and then, in 2005, got appointed by the Arizona governor at the time, janet Napolitano, to become a judge of the Superior Court, where I’ve been for the last 19 plus years.
0:05:18 – Krista Nash
And is the Superior Court. Just because we call them different things in different states, is that the sort of entry-level district court We’d call it district court in Colorado, or is that higher level? It’s the trial court.
0:05:29 – Judge Bruce Cohen
Okay, On the criminal side, we don’t do misdemeanors or lesser crimes. We don’t do small claims. Those are done in the justice court. So this is the trial court level.
0:05:41 – Krista Nash
Okay, and when you first were appointed as a judge, or how many of the years have you done domestic versus rotation into other areas?
0:05:50 – Judge Bruce Cohen
After practicing almost 24 years in family law, I spent the first six years on the bench on a family court assignment. We are the fourth largest court system in the country, behind LA County, cook County in Chicago and Harris County in the Houston area. So we’re number four in size. We have 165 judicial officers and that’s the Phoenix metropolitan area. And as a result, because we are so large and deal with such a high volume of cases, we’re broken down into departments and as you serve on the bench you end up serving in all the different departments, but usually about three to four year stints in each.
I was the exception to that rule. I spent the first six years on family court for them as the associate presiding judge back then, largely because of my passion for family law. So I wanted to stay. Then I spent four years on a criminal assignment, three years on a juvenile court assignment, a year on civil and then I returned to family court as the presiding judge, where there are 44 judges that work within that department. I was the presiding judge for a four-year period and now my last two years I’m back on a criminal court assignment.
Challenges in Family Law Courts
0:07:07 – Krista Nash
Is it as rare in Arizona as it is in Colorado? Potentially that the judges are not generally coming from a family law background?
0:07:16 – Judge Bruce Cohen
I think it’s pretty universal from what I’m seeing around the country On our court. I think I’m one of three or four judges. During the tenure I was on I’ve been on the bench where there’s been judges who have come on that had some level of family court experience. I probably had the most, but there are a couple of others that are close behind as far as the amount of years they practiced in this area. Why do you think that is? It’s a great question.
Part of it is there’s a bias in the selection process that attorneys who practiced in jury types of cases, like civil cases or criminal, that if you did more jury trials you somehow were more well-equipped to become a judge, and that’s wrong. Jury trials, frankly, are easier to preside over if you’re a judge because the jury does a lot of the fact-finding, all the fact-finding in fact. That’s part of it. I think also part of it is that it is somewhat of a political process and most family law attorneys are in small firms or are sole practitioners and don’t have that institutional infrastructure support as you would if you were in public law. Like a county attorney’s office, you’ve got that whole office supports your effort to be appointed. So I think there’s a number of reasons for it, but whatever it may be, we don’t seem to be increasing the number of family court attorneys becoming judges.
0:08:49 – Krista Nash
And so what challenge does that bring? I’m sure you’re helping train judges now in the role and continue to support them, and have seen a lot over the years. What are the struggles that these judges all judges really bring to the bench? But even family law practitioners who join would struggle with family cases, I think, being in that seat, what do you see from just even people that are not coming with that family law experience? What’s it like to be in family court as a judicial officer?
0:09:15 – Judge Bruce Cohen
It’s a real challenge. I spoke the language, I’m from the community and I am a proud member of the family law community. To this day, I still identify as being part of that community. So when you haven’t practiced in that area, you don’t speak the language. And every area of law has their own language, their own acronyms, their own ways of expressing things in shorthand. So that’s one issue. It’s a whole other area of law is another issue, different than what many people practice.
We also at least in Maricopa County, I think it’s true in many jurisdictions around the country we have a very high percentage of cases where neither party is represented by counsel, have attorneys involved and the judge is new to family law.
They have to be able to. The judges figure out the legal issues, the facts that they need to bring out from parties who aren’t experienced at presenting their issues. There’s also a lot of emotional turmoil and angst throughout the process and, lastly, there’s a tendency for newer judges to get appointed in their first rotation at least here, to a family court assignment. So they’re learning how to become a judge. At the same time they’re learning a new area of law. At the same time they’re also addressing a very disproportionate number of people representing themselves. So there’s no surprise to me whatsoever that there’s a real steep learning curve involved. So I’ve been for the last 17 years. I do the new judge orientation for all new judges in Arizona to give them their day of training and family law, which is like asking somebody to drink from a fire hose. They just get all this information thrown at them and they’re supposed to absorb it in a short time period.
0:11:08 – Krista Nash
Do you see people struggling with the discretion regarding because we’re talking, there’s a lot about finances, so there’s some discretion among the financial breakup of a family, but we’re most interested in the child focused area and I think that’s where most of our passion lies, because it’s one thing to break up the business and it’s another. Maybe you make a little mistake in that, but making a mistake with a child is obviously so much weightier on all of our minds. Parents need to understand, first of all, that most courts are doing a best interest of the child analysis and that is multifactorial depending where we are, and I’m certainly open to hearing anything you have to say internationally or nationally about what we know about that. But in Colorado I think there’s nine factors and one of them is what the parents want. It should be pretty sobering.
The rest of them are all other things and these across different states and across different countries are a little bit different, but some of them have the same tenor to them. I wonder if you could talk about just that generally, about the best interests and what you’ve seen in that, but also the idea of discretion behind those, because some of them say you shall consider this, or you shall consider this, or you must give paramount consideration to X, y or Z, but beyond that there isn’t necessarily a weighting. It doesn’t say this is one ninth of the decision. So talk a little about that and if judges struggle with that, what your own thoughts on that are.
Understanding “Best Interests of the Child”
0:12:30 – Judge Bruce Cohen
Best interest has become such an established term of art and it’s a term that’s used, by the way, internationally. It’s not just Colorado and Arizona that are using it, or even just the United States. So this concept, like we hear it and we go, of course we’re going to aim to do what’s in a child’s best interest, and everybody has a visceral reaction that we know what it is. And then you say, okay, explain it to me then. And then it becomes really difficult to define or identify. Almost when you see it, you know it, but if you had to describe it it would be really hard to find nice, clean boxes or categories to put it in. So I teach, or have taught, family law at Arizona State University College of Law and I was trying to come up with a better definition for the law students combined with my years on the bench. And what I’ve come up with a better definition for the law students combined with my years on the bench and what I’ve come up with is, if we define best interest to be understanding the needs of a particular child and then assessing each parent’s ability to meet those specific needs. That’s really what we’re doing. But we talk about things like the wishes of the child, the wishes of the parent, the relationship that exists between the child and each parent, of course very important issue whether there’s any history of domestic violence or child abuse. Another factor that often gets overlooked, that many jurisdictions have, is which parent is going to do a better job at facilitating the other parent’s relationship with the child. You have one parent that’s going to foster that relationship and another parent that’s going to interfere with the other parent’s relationship. That’s a factor to look at in this process, so it’s not easily defined. We have a number of factors we look at. It’s impossible to come up with an equation for it, so it is a weighing process, and then there’s other parts to it.
Best interest is the misnomer, because if we’re talking about best interest, let’s take a relocation case. You have mom and dad live together in Denver or Phoenix, or we could fill in the city and one of those two parents, either as part of divorce or after a divorce, or they’ve never been married wants to go home, and home, let’s say, is New York. That’s where they’re from, and the other parent wants to stay in the home city of the child. If we’re looking at the best interests of a child, wouldn’t we enter an order that says no, both parents need to live in the same community. And yet we can’t do that. Why? Because the Constitution allows us to live wherever we want to live, and a judge cannot restrict that.
If we’re talking about best interests, we put the burden of parenting time or sometimes referred to as visitation on the child. The child doesn’t get to live in the same home and the mom and dad move in and out of that home. Rather, the child has to live in two separate homes, while each of the parents live in their own home. Wouldn’t it be in a child’s best interest to be in the same bed seven days a week and put the burden of parenting time on the parents? But yet we still call it best interest. So I think it’s best interest under the circumstances, because there’s so many other factors and policy matters that have to be weighed in.
0:15:57 – Krista Nash
That is really interesting, because I haven’t really put just that way. As we were preparing for this, I was reading you this quote I’m going to share it about. This is from a book called Children, courts and Custody Interdisciplinary Models for Divorcing Family by somebody named Andrew Shepard. And here’s the quote about best interest. The best interest test does have a great moral virtue it directs the child custody court to thoroughly review each child’s particular circumstances without preconceptions or presumptions. The individualized nature of the inquiry is a tribute to our society’s collective sense that relationships between the children and parents are unique and should be judged individually. I think that’s really interesting. But it’s not just that. Like you just said, it’s that plus parents’ rights, plus evidence, right? Isn’t it done in a vacuum? What are your impressions of a quote like that? I think it’s a great quote.
0:16:56 – Judge Bruce Cohen
There’s a leading family court case that went up to the US Supreme Court. That Sandra Day O’Connor who is actually, interestingly, one of the courtrooms I was assigned to during my career was right above the courtroom she presided in when she started out as a Maricopa County Superior Court judge. She went on to the Arizona Court of Appeals and eventually to the US Supreme Court, but we’re very proud of our ties to Justice O’Connor, but in that case this is back from 2000, 2001,. She noted or really did a good job expressing the fact that parents have a fundamental right to raise their children. When we use the term fundamental right, that’s among the most embedded rights that we all have, and let’s understand that when the court system enters an order that affects parents’ rights to children, we are the government and we are imposing restrictions or terms to what is otherwise a fundamental right. It’s almost like putting terms on somebody’s right to free speech or subjecting terms to somebody’s exercise of religion or their Second Amendment rights, and we can go on and on. We’ve always, as a society, guarded against the overreach of the government to do that In family law. These are fundamental rights that these parents have to raise their children as they see fit. Compare and contrast this to a juvenile court proceeding, which involves really the state coming in saying to the parents we don’t think you’re capable of meeting the minimum basic needs of the child and we’re going to take the child away from you. That’s a different kind of proceeding. This is a proceeding between two parents, both of whom have very strong rights to the decisions about their children, and yet we’re intervening there. So the constitutional aspects are not often talked about, but they are not just a thread that goes through our family law provisions, but they’re actually the very fabric of our family law decisions. So here we’re focused on best interests.
But if I may, I’ll give you another example of this best interest conflict. Suppose mom and dad are adequate parents, but grandma is the best of them all. Can a judge award custody to grandma? The answer is no, except if the court found that neither parent was capable of meeting the needs of the children. Now, under my hypothetical I said suppose they’re both adequate parents, we’re doing best interests. We should place that child with grandma. That’s the best option. But because there are more factors than best interests involved, we can’t place the child with grandma. We can only place the child with mom and dad, either jointly or solely. That’s why I say there isn’t a lot of discussion beyond best interests. But I hope this is conveying that there’s much more at play than just this concept that isn’t easily defined.
0:20:06 – Krista Nash
And that goes back. I’ve talked already on my podcast a few times about that Troxell case and told people that they really do need to understand it if they are coming in with this view that those fundamental rights to parent are not paramount, or at least among it’s more important than a lot of the other factors, because it’s a fundamental right, I suppose one could say a child has a fundamental right to have the very best interests applied to it, but that isn’t really what it says, just like you said, and that bar is pretty low in terms of both parents being adequate. Grandma might be a superstar. Grandma probably is a superstar in a lot of families and, like the dependency, neglect world, we’re talking the level of adequate.
I used to do CASA volunteering and in that it’s like they would train us. As long as this child is safe, if the apartment is habitable meaning clean enough and running water and heat, temperature control and it’s sanitary things like that and they’re getting fed, that’s the standard. It is not, at least in the dependency and neglect world and over in the family court world. You can’t terminate rights there. Do you know anywhere around the world or across the United States where you can terminate rights in a family court. I don’t know how you could.
0:21:18 – Judge Bruce Cohen
I’d imagine somewhere it might. I have not really looked into that, but we have sometimes what I’ve equated to be a de facto termination of rights, where there’s an order issued that a parent can’t see their child, and I question the constitutionality of that, because they have a right to see their child. Now there could be all kinds of restrictions, including supervision and things of that nature, but to just deny a parent any access at all, it requires a higher level of burden of proof and it requires authority to terminate that relationship rather than suspending the relationship for a period of time.
Now either there’s a time a parent doesn’t see a child. Of course, yeah, I’ve heard judge.
0:22:06 – Krista Nash
I’ve had judges say we need and I get this a lot as the best interest attorney at the Child Legal Representative we’re always trying to give a path back.
There’s some kind of path back and sometimes that might go for years when a parent isn’t compliant with the things like sobriety or mental health testing or psych evals followed by treatment, or there’s a whole bunch of things that we do and sometimes this is where I suppose we could get into the a little bit into what we’ve been seeing in our courts lately, because in some cases we now have in our courts in Colorado and some nationally, as we look at cadence law and some of the things that have flown from which I’ve got several guests talking about we’re not going to get into very much today but we have some statutes changing that are seeking at least, like in Colorado, we put it into the best interest standards as something that the court needs to consider.
It doesn’t say that it is the most important, it doesn’t weigh it in a way that’s bigger than the other nine, but it does say that the court especially has to give paramount considerations to a child’s wishes If we have domestic violence, child abuse or child sexual abuse. There’s some question still about what that means in terms of how that is proven. So I think it’s just interesting to see how we go about those interest factors and it’s interesting that termination can’t occur. I’ve got cases all the time where we have these paths back. Is that the sort of thing you’re seeing that you can suspend potentially until the parent produces, basically, or changes?
0:23:37 – Judge Bruce Cohen
their way. There’s so many challenges and you just touched on it is. I have studied history as it relates to family law and I find that to be incredibly interesting, largely because I’ve been in this family law community now for 43 years, despite my very youthful appearance.
0:23:59 – Krista Nash
People have to go to YouTube to see your youthful blog.
0:24:02 – Judge Bruce Cohen
Yeah, so when I started, we were only a few years away from some revolutionary changes that swept the nation regarding family, divorce and custody and things of that nature. Up until the early 70s, most states had what was called fault divorce, and sweeping the nation was this notion of no fault divorce. In Arizona it was enacted in 1973. And almost all jurisdictions are right around that same time period. Now what it did is it didn’t say no one was at fault in causing the divorce. It said you no longer have to prove fault in order to get divorced. That was a big change.
There are people, even to this day, that believe that change in the law making it easier to get divorced is what caused the incredible spike in divorce rates, and that’s false. The spike in the divorce rates where nationally we’ve been in the high 40s to as high as 50% divorce rate of all marriages. That spike actually occurred in the 60s and that was because we had a major change in our norms in society, the roles that people played. In the 70s we saw the women’s movement and women returning to the workforce or going to the workforce in historic numbers. That continued. So we saw that change. The other thing that existed up until the same time was the thing called the tender years doctrine and that said that children of tender years, which was defined to be around eight or nine years old or younger, if all things were equal between mom and dad, they belong with their mothers. That was a reflection of society’s beliefs and there could be a whole debate about nature and nurture and do young children belong with their moms? Put that aside. We had embedded in the law a gender biased approach. That got abolished in 1973, again in Arizona In the early 80s.
Who were the judges ruling on custody cases? Generally old white men, and who raised those old white men? They were raised in the 40s and 50s by a generation of different role playing single working households, moms with the nurturers. So even though the law changed, the attitude of the judges hadn’t changed. And it was really the 80s and 90s that we saw this explosion of litigation involving father’s rights and it came in every angle and there was a lot of contested litigation. But eventually we started to get challenged by what’s our policy? What are we trying to accomplish? We all knew what it was in the 60s and 70s. It was hey, you have inadequate. If mom’s capable of meeting the needs, children go with mom and dad sees them every other weekend. It was almost a rubber stamp type of approach. Now we were having true litigation where you could not take into account the gender. So how do you go about dealing with that?
And what we’ve seen is a move across the country about a presumption in favor of joint custody. The joint custody in two forms equal time where the children live in each home and also equal decision-making authority regarding the children. And we’ve seen that push and pull back and forth Our jurisdiction here. We didn’t create a presumption favoring that. We just came up—Arizona developed a state policy that said both parents should be significantly involved in the raising of their children, which is another way of saying we’re going to have very significant involvement, unless there’s a reason not to and I think Colorado has done something very similar it’s really swept the nation. As we make these changes, there are unintended consequences. Suddenly, you have this push towards increasing equal time and all, but maybe you don’t have a circumstance in that family where the parents are of equal skills or of equal availability to the child. So we’re pushing a policy, but maybe it doesn’t fit for every family.
We then have what about domestic violence cases and child abuse cases and particularly domestic violence cases. Now I can tell you because I’m old enough to remember, in the up until early 1980s, at least in Arizona, if police showed up in a house where there was a claim of domestic violence going on and when they have the parties come to the door nobody wants police intervention. They were treated as a private family matter and they would leave even if they saw evidence of there being domestic violence. In the early 80s we changed the law in Arizona that if there is any evidence that domestic violence has occurred, somebody is going to get arrested and spend the night in jail. So not only do they not leave, they is going to get arrested and spend the night in jail. So not only do they not leave, they’re going to separate the parties involved as we move towards equal time.
There were unintended consequences about what we do in cases where there is domestic violence. So here’s my point in a very long-winded way, and I apologize for that is, we have different categories of cases. You have cases where there has been domestic violence or child abuse, or substance abuse or mental health issues, and when I say that I mean diagnosed mental health issues. They all require individual treatment, but the average case is made up of parents who have strengths and weaknesses, and these policies should be directed towards those cases.
What to do with the other cases takes us into a whole other direction, and the biggest problem in all those other cases is there may be allegations that something occurred, but is there proof that it actually did occur? I, as a judge, could suspect that there’s some credibility here and I think something nefarious has gone on within the family dynamic. There’s disproportionate power, there’s control or there’s just out and out abuse. But if it’s not been proven, we’re a court of law that bases our rulings on evidence. So what do you do when your visceral reaction says there’s something squirrely here, but it hasn’t been proven? Do we go ahead and limit a parent’s access when they have these constitutional rights? So I think what’s important is to first, at the early stage, differentiate between those cases where there’s just ordinary people who have their strengths and weaknesses and our job is to try to help guide them going forward versus those cases that require more intervention, that have deeper issues that need to be analyzed and, part of the plan, to protect the child.
Addressing Allegations and Evidence
0:30:54 – Krista Nash
Do you find that delay in the way that the case management occurs causes problems here? For example, I’ll get pointed on a case early on and there’ll be some allegations. A lot of times we have diagnostic labels put on people without diagnoses. This person’s a narcissist, I don’t know if is alienator diagnostically a thing. I don’t think so. It’s not. I say that kind of tongue in cheek. But we have all these allegations that are thrown. If it’s a case that is new to it’s not one. We’ve got years of experience. But we don’t have really fact finding at that point in terms of the judge making any rulings on anything.
So I sometimes get people saying well, he was only yelling. There’s no police calls ever. Right, on the other side I have, and that’s genderized what I said, but often it’s the man that’s being accused of this. Not always, I will say with a caveat. But over on the other side we have the mom saying no one’s protecting this child. I haven’t called the police for good reason, because I’m scared he’s the one making the money.
Or these are just typical patterns that we hear sometimes, that there might have been things, there might have been some outcries, but it isn’t necessarily big enough to prove it right, because I don’t have the evidence. Sometimes when people call me, I’ll say I need some evidence, and then we have the and this is a whole nother 100-hour podcast. Is what are the problems with? What evidence we’re going to look at? Right, because we have hearsay issues and those are also very important issues. And, just as to put a pin in this, I also want to just say I say a lot to people.
Can we think about how horrible the King of England used to be Like? I remember reading like my procedure book in law school and I just loved the whole introduction because it was about England and how the King was just like taking power for wherever he wanted it. I can go throw anybody in jail, I can do whatever I want to their property. I can take away their children, I don’t know. I can do whatever I want to their property. I can take away their children, I don’t know. I can do anything I want because I’m the king, right by eating, right. And so you look here in the United States and you’re like, okay, we did this right, we are gonna have proper courts.
And very first, question the racist class you take in law school, civil procedure, right? What’s the right court and why? What raw power? I remember my professor. What is the raw power of this court? What raw power does this court have over which people and which things? What have you learned that in Arizona, or what you’re seeing other places you’ve researched since you have such experience about? Are there places doing it better than others in terms of making findings earlier, or is that the way to do it? It seems like the therapists don’t necessarily know what to do. They’re not getting directed right.
0:33:23 – Judge Bruce Cohen
The court isn’t often getting involved until later, so there’s a lot to cover there. It’s a great question. Let me start with some of it. Depends on what are you putting as most valued, down to second most valued third of what you’re trying to accomplish? Everybody would agree protecting a child would be number one on the list. So when an allegation is made against a parent who is somehow abusing or harming a child, if our value system says we are to protect children, then you are going to intervene and limit the risk of a child being continued to be abused until there’s a trial to determine whether it occurred. How is that fair to the parent who’s been accused if that parent didn’t do the things they’re accused of doing? And we live in a system of jurisprudence that’s based on proof. Who wants to be in a system where somebody could be convicted because of a crime because we believe they did something as opposed to we’ve proven they’ve done something?
0:34:27 – Krista Nash
Or someone said they did something.
0:34:29 – Judge Bruce Cohen
Exactly Right, and it doesn’t mean that the allegations are false. It could be just different perspectives involved in it. So that’s one thing is what’s our yardstick. An allegation has been made. What is our goal? If our goal is that we’re a system, many of your listeners have heard of the concept of due process, which really means are you treated fairly in the court system? And so if our number one on the list is due process protection everybody being treated fairly then nobody’s rights should be limited unless and until it’s proven to be necessary, and you could then see how that’s at odds with this notion of protecting a child when we don’t know.
The other part is, many of these behaviors are done in private Domestic violence. Once in a while you’ll see somebody abusing their significant other in public, but it’s rare. It’s behavior that’s reserved for the privacy of the home. It’s underreported. People don’t go to medical help, they don’t go to the police, they don’t go to shelters. There’s so many things they don’t do for a variety of reasons, legitimate reasons why they don’t. So then, is the absence of evidence of a police report proof that it never happened? Anybody who’s done work in domestic violence knows it’s not proof of anything the existence of a police report may be proof, but the lack of existence doesn’t mean it didn’t happen. So we have so many different things at odds. So you asked me what courts are doing it? Well, I think any court, that is. In a case where there are allegations, those parties are in front of a judge to talk about the nature of the allegations, how it’s going to be proven. Even if it can’t be established today, what type of other services might be needed, how is the evidence going to come in? We’re literally saying we have a problem, we have to get to the bottom of it.
Let’s lay out the process for doing so Instead. When we hear a situation, let’s say, where a child has been abused, lots of times you’ll hear an attorney or a party say let’s get the child into therapy Therapy for what? Is it therapy for an abused child, or is it therapy for a child who’s been made to believe they’ve been abused? Or is it therapy for a child who’s been made to believe they’ve been abused? That’s two different kinds of therapy, and until I could direct the therapist as to what their goal is and what’s the baseline, they’re going to go about it differently. Do they treat the child as if this child has already been victimized, when it’s not been proven that the child’s been victimized, that it ever occurred. So it’s so complicated and there’s so many variables that come into play.
So what’s an approach that, after all these years, I would say this is as good as anything I’ve heard? It’s a few things. Number one this notion of an early partnership, whether there are attorneys involved or not, a judge getting on board right away setting up the plan. It’s more procedural in nature, because everybody doesn’t have all the evidence yet, of then focusing on. What are our goals?
Here we place parties into an adversarial system. That’s our system of justice, the notion being, if you are subjected to being questioned by the other side through cross-examination, to being questioned by the other side through cross-examination, that tension that occurs in the court system will spout out the truth. And that may or may not be the case. But in family law we tell parents to emphasize their individual strengths and to emphasize the individual weaknesses of the other spouse or the other parent. But when they’re done with the litigation they have to figure out how to work together. So, after I went ahead and demeaned you and elevated me to sainthood, I’m a wonderful parent and you’re a serial murderer. And then you point out that I’m the serial murderer and you’re the saint, after we’ve harmed each other and the system has even created more division between us. I then enter an order and say to you now work together. It’s counterintuitive. We’ve done more harm than we really set out to do. And the other part is also, I think, in the educational realm for parents. If we put aside those cases where there is evidence or significant suspicion of a harm to a child or the potential harm, and just look at all the other cases, the key is to basically say how do we create an environment where, despite the divorce, the children can grow up to be happy, healthy, well-adjusted, prepared for life?
And then number five in my hit list of five things that they’re going to want you to be involved in their lives once they become adults. So take a 12-year-old. Those parents at most have six years left of being parents of a minor child, and we know that 17-year-olds don’t exactly follow too many custody orders. So I think it’s even less than six years. But a 12-year-old, six years later, those custody orders are done. If those parents live another 54 years afterward out of the 60 years of their life. Six years will be spent being parents of a minor child. 54 years will be spent being parents of an adult child. That’s sobering. If you want your child to want you to be part of their life when they’re adults, you got to get it right in those next six years.
And getting it right isn’t always protecting that child from the other parent. Getting it right is allowing that child to love both parents, to exist in both homes, to acknowledge that they have two parents. And again, I’m talking about the average case, not the exceptional cases. But we often get so caught up in the exceptional cases. Are you saying you would subject a child to being abused? Of course not. But I’m not talking about the abuse cases. I’m talking about the average case. The abuse cases, then, would have more time. If we reshaped the way we dealt with the average case, the abuse cases would have more time for judges to hear the evidence try to figure out.
0:40:44 – Krista Nash
So what have you seen from the bench? Or maybe you practice as a family law attorney. Do you think it’s partly the fault of the bar that a lot of these people are unrepresented? So maybe it’s just our average Colorado, like Denver, I think, is about the same as Maricopa, about 75 or 80 percent per se. It might even be higher than that. Per se, meaning unrepresented.
The Denver judges say that if they get a represented party during the day they’re fortunate, which sometimes having a represented party makes it toxic in a different way.
But at least you’ve got somebody trying to make some arguments to you as a judge. What do you think about the just sort of family laws set up in terms of this idea? Because I think you’re right If we were able to somehow create more flourishing systems for the average cases that allowed people to get through it more easily, even those cases where lawyers are involved to get it through. And my own view of it is that our money system it’s just a broken system where people get more money to have more adversarial cases. So it’s just really hard to not try to throw all the tools on the table when you’re an attorney and you’re representing a parent, even if it does ultimately take longer, costs more, maybe not end up differently than it would have without all of that, but I think genuinely can hurt the children and the chances at co-parenting later. But what do you think about the bar’s obligation in all this?
0:41:58 – Judge Bruce Cohen
The bar is functioning in a system that they didn’t create. I think lawyers get a bad rap. I’m tired of hearing about lawyers where people say they want you to litigate so you could pay for the new Mercedes. Most of the family law attorneys that I have been exposed to and this is nationally, it’s not just in Arizona are really dedicated to helping people find solutions to their cases, and the good ones have plenty of cases to keep them busy, that’s true. Are there outliers? Yes, but there are outliers in every profession.
There are doctors that perform unnecessary medical care because it’s in their financial interest to do. There’s accountants that probably do unnecessary work because they get paid by the hour and it’s in their interest. That’s true for the legal profession too, but as a whole, it’s a profession made up of dedicated professionals trying to serve the needs of their clients, but it’s their client’s cases. So even a well-intentioned lawyer has to be responsive to what their client wants, not a super parent telling them this is what you’re going to do. So that’s one problem. Here’s what we’ve come up with in Maricopa County some processes that I’m very proud of. When you have two self-represented litigants and they’re both before the court, we get them in for an early resolution conference is what it’s called. It’s staffed by a licensed attorney who works for the court full time, is not practicing law.
0:43:28 – Krista Nash
We do that too.
Innovations in Family Court Processes
0:43:29 – Judge Bruce Cohen
We call them family court facilitators, so they meet and they go over and see what agreements they can reach If they don’t fully resolve their case. If they do, these people help them draft all the final documents. Their case can be ended even that day. If they don’t resolve their cases, we have now a simplified trial that the parents could opt into. They go from that early resolution conference back to their assigned judge and, unless they can object to it in which case we do the standard trial of asking questions and cross-examination and admission of evidence or they could opt into this more simplified system where the judge asks all the questions.
So let’s say I were that judge and you opted in, I would be able to say to you okay, ms Nash, what is it you’re looking for as a final order regarding your children? And you lay it out for me. Then I turn to the father of the children and say what’s your plan that you want Now in Colorado? You have those nine factors. I’ll go ahead and ask you one factor is the wishes of the child. What do you believe your children want? And then you answer that. Then I turn to him what do you believe your children want?
And I go through each factor and allow each of them to express whatever they want to express and it’s a way of walking them through the kinds of factors I need to look at, but in a simplified way, where they get to speak their piece without having to learn how to be a lawyer and how to ask questions the right way, and looking for their Perry Mason moment where they’re going to ask the other party the million dollar question and the other parties can say you caught me, I’m guilty. Those just don’t happen. So I think that there are ways that we can create a user-friendly system that says I want to hear from you and I will hear from you, but I’m going to direct the conversation so that what I hear are the important things that will help me make this decision.
0:45:30 – Krista Nash
I have a colleague who practices in both Colorado and Arizona and he was telling me that Arizona has some of these. Like you’ve got to opt into different rules of evidence. Is that what that is that you’re talking about?
0:45:39 – Judge Bruce Cohen
That’s another thing we did is about whether we’re going to strictly apply the rules of evidence. About three or four years ago we created this as a pilot program. We did it in three counties the Tucson area, phoenix area and one of the small counties and then our Supreme Court now extended it to be statewide on a trial basis for the next two years. This simplified trial motion and I know Nevada is now looking at our model to adopt it there Oregon has a similar model. There’s a number of jurisdictions that have done so, so this is a way of being responsive to the kinds of shortcomings that we have when you have self-represented people having to navigate the court system. A better job of helping them navigate it, directing them, getting from them the information we need as judges to make the decisions, but to do it in a fair way where they get their say and their day in court.
I don’t know any self-represented litigants that object, saying no, I studied the rules of evidence and I want you to strictly apply them. What they say is I want to tell my story and they get their chance to tell their story and then the judge figures out from there what to do with it. The last part of that equation is us redefining what the goals are, because the court system is designed to say to people I want to hear how you got here, when, in fact, what our real mission is, to figure out where we go from here. Right, exactly how you got here. Your marriage disintegrated or your relationship disintegrated, it hasn’t worked. Where you go from here is if you two are not going to be together any longer, how are you going to raise these kids?
0:47:16 – Krista Nash
Yeah, and that’s what I’m always asking, too right, we got to just look forward here. And it is interesting there’s another well-known judge in Colorado, angie Arkin, who I recall always saying the beautiful thing about these family law courts is that they are looking forward, as opposed to any other court that’s trying to just reconstruct what happened in the back and who did what, to whom you have the opportunity to look forward, which is, I think, as you go back to that quote, I read you it’s. It does have some moral virtue to it.
It does it does Interesting people like, oh, you’re a divorce lawyer. No, that’s not my mission here. It’s a much higher moral virtue type of work. I like what you said about attorneys. I agree with you that most of them really, I think they do want to solve things. I just think that there’s a sense that they don’t press their clients enough. I appreciate what you’re saying about being a super parent, meaning saying to your client I think this is the best choice.
What I see is a lot of people going off to court and not having done that or just saying I agree with you. But then we get on court and it’s completely a different song and dance. Like sometimes they’re looking down and not making eye contact with me as a child’s legal representative, because we just had a phone conversation where they said yeah, I agree with you. This is definitely the best outcome. I’ll talk to my client and then we get on court and they’re like my client wants me to do. Is this which is proper?
And yet I just presented at a big conference in Colorado in the summer and this attorney who has been around forever, I just recently starting to say no to my clients. This is like a really solid attorney who’s been around a long time and I think he obviously is a great attorney and does wonderful work, but at the same time, this idea that saying no is hard. I at least pose the question to attorneys of if they really think that I will get off a case before I will take a position that I think isn’t best for children. Maybe that’s just me, because there’s a lot where you could say A, b or C or D options would all be fine, even though I think A would be best. Let’s fight it like a, I don’t know, relocation or something.
0:49:13 – Judge Bruce Cohen
Like I might not even do that, but I don’t know. That’s why I’m changing my practice. You raise a valid point and there’s so many dynamics, including. This is a profession where people make a living, and that’s a factor. The other part is what is our role? We used to be called counselors at law. Right, we were there to counsel, to represent, to advocate. All these terms are implicitly relating to the rights of somebody else, not us. So I was one of those people that, in the wrong case for me, I did withdraw when my client was taking positions that were so contrary to what we could prove and establish and what was right. Do we then? Everybody abandons all the people who take positions that they’re allowed to take. They have the right to their day in court.
0:50:01 – Krista Nash
And it’s like a criminal attorney. Right, you are doing the best you can to make sure that the government isn’t overreaching and is proving their case and you’re putting on a case. You see this happen a lot. That is the right. It’s just a matter of whether, I think. I don’t know. I just have a more of a view of my own role, at least as being different, or at least I hope that attorneys are challenged because the interest is so important and they should be able to self-reflect. I think there’s some varying narratives here. Right, like maybe, oh okay, a school choice, maybe you can take the one you don’t agree with. There are some times where we’re going to court and charging $100,000 more than that, where we are making arguments that are just ridiculous.
Reflective Insights and Final Thoughts
0:50:41 – Judge Bruce Cohen
I absolutely agree. Let me give you one where, on its face, the argument was ridiculous. It involved I represented a woman that was charged with abusing her child and there was evidence, lots of evidence, indisputable evidence. Am I getting my point across? And it was set for her rights to be terminated. She was going to lose her child and I was appointed to represent her.
This was early in my career. I was doing juvenile court appointments and I was appointed to represent her. This was early in my career. I was doing juvenile court appointments and I was appointed to represent her, and I could not figure out why were we going to trial? And I was on the phone with her the night before the trial, in a moment that I probably should have done months earlier. I said why are we fighting this? We can’t win tomorrow. You know what the evidence is. And her answer to me was I know what the result is going to be, but I don’t want my son ever to think that he wasn’t worth fighting for. It was a profound moment for me to realize what I was doing the next day in litigating.
This case was actually among a noble calling, interesting Because I allowed somebody whose rights should be terminated. I allowed her, in her last gesture of being a parent, to be able to, in her own way, convey to her child that she was sorry and that he mattered to her. She could have gone in there and said I’m not contesting it, and he would have, aside from having been abused, he would have gone through life thinking I don’t even matter to my mom, I wasn’t even worth fighting for. And at the end, when the judge issued his ruling, the judge actually included a comment about my representation, of her commending me for sticking with her and doing whatever. And I thought, wow, that happened because I asked her the right question why are we doing this?
0:52:34 – Krista Nash
I love that. I think it’s really important to remember those sorts of things and that’s just a really beautiful gesture. It’s a great example.
I think I worked for a federal judge who taught me how to mediate. Really, I observed him. He was in that seat where he, as a magistrate judge, he could do lots of mediation and he always brought to the table sometimes huge corporations, sometimes individuals this was federal court so really big cases, cases with high level of injury and things like that. And he talked about how interesting it was to him that there were, that there was such an element of this of things that the court couldn’t give you right, like an apology or things where you could write letters to express certain things. And so it’s interesting, because what I think about when you say that it’s different, because it’s dependency and neglect again, but I would encourage parents and their counsel in these domestic cases to think about are there things that you can creatively produce in this that wouldn’t be only litigation? Right, can we not think out of the box and say, okay, this parent wants to show, even if there was some kind of thing, like you’re talking about abuse or whatever, can we not meet this child where they are right and give that person more, that child, more time with the other parent and allow for example, I’ve got a case where the dad recently walked away from the child because of her allegations of abuse that he denies. Okay, and we agreed to allow a wonderful psychologist to keep seeing this child even though the father walked away, and the idea was he was going to be able to keep writing some letters so that the therapist, at her discretion, at her sole discretion, could provide those or not provide them, process that with the child and shortly after we even made that transition and the case closed, the child breaks into tears with this psychologist and is like with a letter with her dad and now they’re on a path that is so much stronger than it was before.
So I guess I’m just saying I think there are ways that attorneys can think about meeting their clients’ needs differently or better, recognizing that litigation is not going to be very satisfying to these people. You’re not going to get to tell your whole story. The court doesn’t. Really it’s not a jury trial, it’s never going to be a jury trial. It’s always the bench. The bench is listening, but they’re not. Maybe that’s satisfactory to tell your story, but you’re not, you can’t get all the remedies that you would hope be tied to somebody mandating it by way of a court order.
0:54:56 – Judge Bruce Cohen
I now, wearing my magical cape, go ahead and bequeath you’re going to have a healthy relationship and instead let that happen organically. And the case you just described that father and daughter have a better chance of having a healthy relationship in the future than they ever would have if the judge or the people involved had imposed it, if the father didn’t take a step back and say I’m going to let healing occur and maybe we could conclude with something kind of an imagery. I’m big into motivation for getting it right. Why do we do what we do? And it’s usually because there’s an end goal. What is that end goal that we’re trying to achieve? And it gets lost because there’s an end goal. What is that end goal that we’re trying to achieve? And it gets lost in custody litigation all the time? Yes, it does. So.
Years ago I went to a wedding. It was my wife’s cousin who got married in California. So I traveled from Arizona to California. The wife’s family was predominantly from Ohio, but there were people in California. The husband’s family they had people from Iowa and Illinois. So my point is people traveled from around the country. Plus they had a big contingent in California. So I’m sitting there at the wedding and my wife’s cousin, my wife’s aunt and uncle, got divorced right after my wife and I got married. So this was years after I was already a member of the family. I only knew them as divorced. And I go to the wedding and I’m sitting there and I’m watching the dance floor and I see the bride and groom dancing with my wife’s uncle, my wife’s aunt and her uncle’s second wife who had been in the family for quite a while. So here’s mom, dad, stepmom and the bride and groom dancing together on the dance floor. I thought warm my heart I’m a family law attorney to see this. So I turned to somebody next to me and I said I saw the bride’s father walk her down the aisle. Which one of these people is the bride’s mother? And they said she’s not here. So I said where is she? And they said she’s in Ohio. And I said okay, people traveled. They said when she heard that he was going to be at the wedding, she refused to come. So I thought at that moment, right before my eyes is my entire family law career Two families of divorce when their children were young.
One family decided, despite their differences. They were going to figure out how to work together and they ended up dancing at their child’s wedding together. The other family never figured out how to get it right and whatever battles they thought they were winning or losing when that bride was an adolescent or a teenager. She’s now a grown woman and she couldn’t have both their parents at the wedding. That was a choice those people made years earlier, not a choice that they made the week of the wedding.
And when you express that to people who are going through all the pain they’re going through and say I want you to get past right now and look to the future, what does that look like for you? And even if you can’t dance on the dance floor together, could you at least be at the same wedding together? If you’re not going to sit next to each other, doesn’t your daughter have a right to have her mommy and daddy there on the most important day or one of the most important days in her life? That’s what our mission is to figure out. How do we allow people the opportunity to attend their child’s wedding If we just use that as our symbolic event?
You have an opportunity then to get through to parents to say what are our goals?
What are we trying to accomplish? When your daughter has your grandchildren, will she want both of you at the hospital? Or even if you promise to behave yourselves, will she be triggered by your past behavior so much that even if you do behave yourselves and cooperate and behave at the hospital, she’s going to be so focused on you it’s going to take away from her experience and may not want you there? That’s what our mission is, and if all of our systems and our focus and our attention was looking forward, as you said that something really positive that the judge mentioned we get to in family law look ahead rather than reconstruct the past. If we can get people to focus on that and set those goals, I think then we’re going to do greater good than any changes in laws or any definition of best interest or whatever our roles are. That’s when I think, then, we’re going to do greater good than any changes in laws or any definition of best interest or whatever our roles are. That’s when I think we hit our sweet spot.
0:59:34 – Krista Nash
That is so well said. I just love that so much and I’m going to have to have you back because we got to still hit all of your international experience and I just so appreciate we got to know each other. I should have said a long time ago I was fortunate to get somehow get to piggyback with you onto a conference presentation that we did in Boston at the. We were kindred spirits from the moment we met. I love it. We were at the how do you say AFCC?
0:59:59 – Judge Bruce Cohen
in Boston.
1:00:00 – Krista Nash
Association of Family and Conciliation Courts. I look forward to more like that and I just love what you just said, so I’m going to let you go off and thank you so much for your time and I hope you’ll join us again and I just can’t thank you enough for all of your insight. I hope it lands where people can hear it All right. Thanks. So much, Krista.
1:00:18 – Judge Bruce Cohen
Thank you Take care.