The Role of Delay in Family Law

In family law, delay generally is frowned on -- at least where children are involved -- because certainty and closure are generally good things where adoptions, divorces or custody disputes are concerned. Kids deserve to know what their future holds, at least in terms of where they are going to be living and what their basic schedules are going to be. Delay -- leaving kids in limbo -- seems fundamentally unfair. In cases where the issue is not just time share between parents, but is actually who the parents are, delay is even more problematic. We currently have two cases in our office where delay has become a big issue. In one, a birth mother was convinced to give her child up for adoption based on promises it now appears the adoptive parents never intended to keep. This is fraud, and can be a legal basis for setting the adoption aside. It is clear that one of the primary strategies of the lawyer representing the adoptive parents has been to delay litigation of the fraud issue for as long as possible. Since the child continues to live with the adoptive parents while the case is pending, counsel knows that it will become increasingly hard for a court to order return of the child to the birth mother with every passing month -- and certainly with every passing year -- out of concern that disrupting the child's attachment to the adoptive parents will hurt the child. This is a case that truly could be won or lost not on the law but on the success of counsel in delaying things beyond the point where carrying out the law would be fair to a child. In the other, a lesbian couple has been fighting for years over parentage of their child. Bio mom took the child and moved to another state when the child was only a year old. Again, the legal outcome of this case is clear: both women are parents. But by stalling and delaying as much as possible, bio mom is in fact succeeding in creating a situation where the child doesn't know her other mother, and where reintegration becomes more and more difficult. Another case that could be won or lost not on the law but on the success of counsel in delaying things beyond the point where carrying out the law would be fair to a child. Delay as a tactic makes lawyers look bad. In both of these cases, it could end up doing real harm to children. It is time for the legal profession to rethink the use of delay, at least where there are children involved.