I can't for the life of me understand why people are forced to endure the absolute hell that is family court.
Because one or both of the parties involved in the matter went to court. There are a number of much better dispute resolution paths like mediation and/or arbitration and/or collaborative law that can be taken that are much more cost effective. But, once the court matter is set forward by one of the parties (or both) then you are stuck in the court system unless both parties choose to withdraw from the case and choose a better method for dispute resolution.
As well, people create the hell in the court system with allegations that need adjudication by a judge to resolve. They stack them, create voluminous and often irrelevant nonsense that judges need to sort through because one or both parties think it is "relevant" to "winning". Which comes to the next point... The "winning" attitude that court imposes on both litigants.
Why it is not 50/50 by default?
It is technically. But, in the vast majority of cases brought before the court one (or both) parties bring forward allegations of "abuse" against the other party that destroys the default of 50/50 shared residency and joint custody. When this happens it isn't appropriate for mediation often and the next best path is arbitration but, that is an expensive route and people often see court as a "cheaper" means of arbitration through the public system. It is not.
So, you are left with court to sort out the claims of abuse, bad parenting, and conflict between the parents. Courts rarely if ever see conflict free things in court on motions. The only time they see reasonable people is when they come with a fully formed settlement agreement made on consent. But, that is rare because a good agreement made on consent doesn't need court enforcement to be valid. But, these parents are those who can compromise and work together to come to these agreements. They are willing to COMPROMISE on their positions in the best interests of the children.
Parents who are up on motion and for trial... They cannot come to those compromises and then stack allegations thinking they will "win" more by doing so. Children lose when parents do this. Big time.
Why does the "best interest of the child" principle so often ignore the critical role and importance of fathers?
They don't. Often in high-conflict court cases (or in the majority really) an allegation that challenges the simple "best interests" test are introduced and requires a judge to arbitrate those allegations against the best interests. So, clearly you are stuffed in a situation where one (or both) parents have made an allegation that requires a detailed evaluation, based on evidence, to evaluate the "best interests" against the "evidence".
If there are no allegations raised then the default is 50-50 residency and joint custody. This happens in the vast majority of matters that do not go to court these days unless one of the parents compromises for another agreement. But, we don't see the reasonable parents who do don't hurl allegations like drones and missiles in war because, they settle and move on with their lives in the best interests of their children.
As well, when you put parenting and children in the mix there are a lot of emotions which lead to both parties becoming extreme in their positions. Which snowballs into parental anxiety and more allegations which take even more time for courts to resolve. Costs often cause dramatic and high conflict cases to settle because the financial reality of fighting over who cut the children's finger nails more etc... are irrelevant and not worth the financial fight.
Who the hell decides what the "best interest" even means? Because from where I’m standing, it sure as hell looks like the only real winners in this brutal circus are the family courts and lawyers who profit from people’s misery. This isn't just unfair, it's a disgraceful, broken system. Why? Also, what to do with this sh-t?
Judges if you are before the court decide. But, what the law really wants is for parents to decide amongst themselves what their children's best interests are and the VAST MAJORITY of separations are resolved this way. Parents become unreasonable when they mix their personal emotions into the mix and then raise allegations that require adjudication to resolve. When evidence needs to be weighed on the balance of probabilities then an arbitrator or judge need to do that. So they need to balance the BEST INTERESTS TESTS against the evidence raised by both parents to make the determination.
Ultimately, its conflict between the parents that brake the system and those parties are to blame... not the system. Too many parents claim "abuse" for irrelevant things which prevents quick and reasonable resolution to matters. Angry parents, who want to seek revenge and "win" are the problem.
Now, one could argue that if courts really laid down the costs against parties who engage in conflict this could end. It would send a strong message to negative advocate lawyers to advise their clients to be reasonable and not regurgitate so much court cluttering nonsense. Costs have been stronger since Izyuk v. Billosouv these days so the courts are waking up to the need to leverage this tool (costs) to create better jurisprudence that would make an undermanaged emotional parent reconsider and focus on the needs of the children over the need to "hurt" the other parent by "winning an advantage" over the other parent who they hate.
Parents are the problem generally and not the system.
