Remarks of Toby Hollander on Receipt of the Ann Liechty Pro Bono Child Custody Award

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My journey towards this award began on April 28, 1999, when I had a minor rear end collision on the Maine Turnpike. Unknown to me, lymphoma cells had some time before chosen my body for a safe harbor. The rear end collision sent me to my osteopath, who, while manipulating my neck, detected an enlarged lymph node, which was later diagnosed as Non-Hodgkin’s lymphoma. I learned it was a slow growing malignancy. Meaning, there was time. I knew I wanted to leave a mark in this life, but I knew I would have to make some changes if I was going to be able to take advantage of the time I had. I needed to stop what I was doing (general trial practice) and figure out what to do with that time remaining.

Kids! I could apply my trial skills advocating for kids. Luckily, the State Courts of Maine were simultaneously professionalizing the practice of Guardians Ad Litem, so I took the first course offered to become a "rostered" guardian, confident in my knowledge having practiced domestic relations law in small practices for over 25 years. The first thing I learned was how much I still had to learn. I have completed five years of "on the job" training as a Guardian Ad Litem and I’ve never had a better job. I want to thank the ABA Standing Committee on Pro Bono and Public Service for choosing me this year to receive the Ann Liechty Award. It somehow doesn’t seem right to receive and honor for something I love doing so much. I have done pro bono work in the past in the recognition that everyone deserves representation in Court. This is even truer of the children of poor families, whose resources are becoming scarcer and scarcer in this age of budget cutbacks and deficits. Now, more than ever they need an extra ear to bend, an extra voice in their corner.

Those who know me, know I relish a soapbox, and I figure I’ll never get a chance like this again. I want to challenge my professional colleagues in the Family Bar to take steps as lawyers within their power to reduce conflict between parents in child custody cases. I can almost hear a collective "riiiight…" As a guardian I have had a real opportunity to see how WE behave in custody battles very much effects the ability of parents to come to an agreement on how best to raise their children. We need to understand the long term effect of how we practice upon children. Kelly and Wallerstein have done an extensive longitudinal study of the effects of long-term parental conflict on children and have shown that children subject to this kind of conflict are at greater risk for juvenile delinquency, substance abuse, mental health issues, suicide, difficulty establishing trusting relationships, and later criminal behavior. Our behavior in litigation is making this worse, and we need to change. I will give some examples:

  1. Many states have enacted mandatory mediation in family matters. The lawyers and their clients meet with a neutral to try to reach an agreement. Way too often I have seen lawyers, trying to impress their clients, address the other party personally and disrespectfully. They may not realize it (because we are used to behaving this way towards each other), but we often inflict pain and generate on-going anger and bitterness which is injected into the case or intensified. We need be more careful about what we say in those circumstances and avoid inflammatory language. It often can’t be taken back (as we are fond of saying, "the bell cannot be unrung") and inflicts serious harm on the long term prospects for cooperation between the parties.
     
  2. The same is true when we write inflammatory letters to opposing counsel, often for the purpose of looking active and vigorously defending the honor and interests of our clients, and not to achieve any sort of agreement, and knowing they will be passed along to the other party. These communications have the ability to wreak havoc upon the parents’ emotions and thereby, their children. I cannot count the number of times that I have interviewed parents who complain to me not about their soon to be ex-spouse but rather his or her lawyer!
     
  3. The same zealotry applies to closing arguments in trials. True we are not bound only to talk about the facts, but it is important to remember that what we say in these arguments are heard by the parties and remembered. So it is even more important not to go overboard at the end of the case, as often this really is the last thing the parties will remember. Zealous advocacy need not mean we should gratuitously inflict pain that will leave a lasting emotional scar. In this way, we can all contribute to the well being of children going through the trauma of their parents’ divorce. We might even improve our reputation as a profession.