Why Is Family Law So Different?

Family lawyers represent a different breed of attorneys, and it's not just because they practice in a slightly different field. People who've never dealt with the family law system are often surprised by how little it resembles the civil or criminal process. Let's look at why family law is so different.


The fundamental difference is that a family court proceeding is non-adversarial. In most legal proceedings, there are at least two sides whose interests either don't or can't align, such as the state bringing charges against an individual for disturbing the peace. This is an adversarial process because one side squares off against the other with the intent of winning. 

Family law attorneys operate in a non-adversarial setting. Suppose two parents are trying to sort out a child custody agreement. The court will try to arrive at a solution that's in the best interests of the child. Barring some rather extreme concerns about one of the parents, this means each parent will likely have some claim to shared custody. This happens because the court considers time with both biological parents to be in the kid's best interests. Declaring winners and losers isn't the point.


As noted with the example of the best interests of a child, the standards are different. Nearly all divorce cases, for example, operate in a no-fault environment. The court doesn't care who wronged whom. Instead, it merely wants to know whether at least one partner wants the marriage to end. If so, the judge's duty is to grant the petition for divorce once the case meets a few other easily attainable requirements, such as exceeding a cooling-off period.

The standard can also change over time in family court. Particularly, this happens as the kids get older. A 6-year-old child won't have much say in where they're going to live, but a judge will strongly consider the opinions of a 14-year-old one.

Similarly, the standard can change in cases involving adults. A judge might grant a conservatorship for an adult who is experiencing a mental health crisis. However, once the crisis is under control, the court can amend or even terminate the arrangement. In family court, the standard sometimes changes as the circumstances change.

Evidentiary standards are also different. Most family court judges will look at the evidence or hear testimony that speaks to the situation. Short of someone doing something nefarious to obtain a piece of evidence, the judge will investigate concerns relevant to the case.

Contact a local family law attorney for more information.