Domestic Law Standards

First, one must understand that marriage (from a purely legal standpoint) is a "contract." Therefore, divorce is nothing more than dissolving a contract (though I personally believe marriage to be a deeply religious covenant between two people). The interesting thing is that most civil contracts, i.e. business contracts, contemplate an end right from the start, whereas the contract of marriage does not - as well it shouldn't. Therefore, there are many more nuances in dissolving a marital contract - particularly when the psychological and emotional well-being of children are involved.

Within the last few decades, our culture has re-defined "normal" in terms of American family life. Some statistics, show - at least in certain parts of the country - that there are more children in school who live in a non-traditional (i.e. father and mother) home than do a traditional, nuclear, intact family. So, by definition, the paradigm has shifted to "normal" being a single parent home or a blended family. The law, moving at the speed of government, has not kept up with the rapidity by which the needs of those it serves have changed. Again, the Oklahoma Legislature has done a laudable job in the last five years in drafting and implementing legislation that will address the new and changing needs of our culture. But there are still a few are was where our Legislature lags behind.

One area of great consternation is not legislative but judicial, and driven in large part by the core of practicing family law attorneys. Many simply do not know the law ... not just the recent changes, but even the legal staples of procedure that have been in place for decades upon decades to ensure "fairness" and "equity." For instance, the Oklahoma Evidence Code has but one central purpose - to ensure evidence being introduced has a basis and is trustworthy as information. Many times, however, those rules are "relaxed" in domestic cases. I don't know why ... there is no legal authority anywhere that states the rules of evidence are "relaxed" in domestic cases (perhaps in juvenile court), but not domestic cases. Nonetheless, lawyers attempt to take evidentiary shortcuts all the time by introducing evidence that does not meet even the most basic standards of the Oklahoma Evidence Code. More surprising is that when called on the issue, very few members of the bench and bar actually know the correct answer .... actually know the applicable law as to what is admissible and why.

Hearsay seems to be the biggest problem. Hearsay is defined as: 1) An out of court statement (which just means it was not made under oath); that is being offered to prove the truth of the matter therein (i.e. offering a speeding ticket to show someone was speeding as opposed to showing that person was in Texas when he/she received the speeding ticket and, therefore, could not have been in Oklahoma visiting with the child or threatening the other spouse). Surprisingly, many family law practitioners and some judges do not even understand the most basic definition of hearsay. As a result, evidence is entered (and considered by the domestic judge as the sole trier of fact - without 11 other jurors to help him/her) that has no legal basis.

Astonishingly, the result is that when dealing with the most basic right humanity, access to one's child, the evidence ruled upon is often not even caused to be put through the most rudimentary test for reliability - which is the whole purpose of the Evidence Code. Yes, it is trie, that there are many emotions in a domestic case. Yet only by actually following the rules - rules established by the legislature to ensure a "fair" trial and that evidence which is either not relevant, not reliable or more prejudicial then probabative (and enflaming the passions of one jurist as opposed to 12 jurrors makes it even more critical in domestic case) is not considered.

Then, and only then, can we hope to get rulings consistenly in the best interest of the children/families involved in the disputes. Sure, it is presumed by the appellate courts that a judge setting as the sole trier of fact (one without a jury) can dichotomize in his/her head the difference between admissible and inadmissible evidence, but if the law requires its exclusion, why let it in and increase a chance of error that can never really be corrected because often times the standard of review on appeal is "abuse of discretion." In other words, did the trial court "abuse its discretion" in making the finding ... because most domestic cases are fact specific rather than legally based. In short, there is no authority - ANYWHERE - that "relaxes" the evidence code in domestic cases. If the evidence code is not followed - as intended by the legislature - then the domestic judge has an exponentially increased his/her opportunity for error because the genisis on which the decision is being made has not been tested for reliability. All of this will have to do with what I will write more on later -- DOMESTIC LAW REFORM