• Brendan

Cheap Chicken and Child Custody: When Crises Cascade in Complex Settings

Stories this week have depicted a supply chain crisis with respect to to that perennial favorite of children everywhere: chicken tenders. From truckers and plant workers to USDA inspectors and others - when vaccine “mandates” are announced or implemented there are unforeseen and rippling impacts and then impacts from those impacts. The importation of an item or product used to make/grow/facilitate X impacts the production of an unrelated product Z because both utilize or are used in yet another product Y. The web(s) of interconnections relative to people, products, things, and ideas can be dizzying. Looking at things in simple isolation can be misleading or skewing.

On seeing this chicken tender news, I immediately thought of this all and then about a thing that I do: child custody litigation. Not unlike getting a handle on the crisis in cheap chicken, dissecting the corpus of a child custody case requires an unpacking of multiple, seemingly disconnected impacts, factors and facts. Too often, but not unsurprisingly, these cases (which represent crises of their own) are depicted and presented with an unsophisticated narrative and in a polarized fashion. Mom is an alienator. Dad is a narcissist. Mom enmeshes. Dad controls. Simple, right? Good guys and bad guys. White hats and Black hats. Red states and blue states. Small things become big, big things become small.

The emotional needs of the child, the psychological attributes of the parents, and the resulting fit — it all gets boiled down to a caricature instead of a portrait. And those distorted images are often further caricatured by us with the creative use of select buzzwords that are cherry-picked to shore up and buttress the now disfigured image we are presenting.

But child custody matters and supply chains, for all of their many and material dissimilarities, are very similar from the standpoint that both are complex systems. There is never JUST a mother, father, and children. Those two parents have or had parents and those two parents were once children themselves — they do not come to these cases as blank slates. And for the children involved — their emotional and physical terrain is populated not only by their parents but with siblings, extended family, friends, teachers, coaches, tutors, therapists, classmates, teammates and more. Each of these third persons or groups of people acts upon each child and in reciprocal fashion, each child acts within and upon each relationship with an individual or within and upon each group. These systems overlap like lattice work.

Without diving into to the very interesting psychological work that has been done in terms of researching what impacts kids and how - the relevant point here is tied to but also somewhat beyond and outside that relevant body of knowledge. This is not about conveying, critiquing or engaging with the substance of that material. It is out there and we who work in this space should be conversant with it. Rather, for both lawyers and litigants - a different but related understanding is no less critical. WHAT does it all mean? How does it matter to my case (as a lawyer or party)?

To my mind, it means that the way in which we as lawyers analyze, approach and act within a custody case requires a particular mindset framing (or reframing). Let’s say you get a new case. You learn all the backstory of the parents and children. There is going to be a forensic psychologist appointed and a guardian ad litem. Now what? Your case is filed and stuff (to use the technical term) starts happening. There are squabbles over Christmas and playing football. The parents dispute vaccines or private school or when, where and how vacations take place. Is it 6:00 p.m. drop off or 7:00? Curbside or doorstep? Who controls the iPad? A million things come up.

They can all seem very unrelated and distinct or at best only related in a cheap chicken kind of way - like observing that chicken tenders are in short supply and not mining the depths of why and how. The cheap chicken approach to child custody is using a cudgel instead of a scalpel. The cheap chicken approach is to characterize every issue through the lens of the caricature described above. “See, this is just more of mom doing X” or “Dad just can’t stop being Y.” Confirmation bias inevitably sets in around everyone. Everything looks like a nail because we all have a hammer in hand. Or we inevitably retreat from the bold bailey of these crude depictions to the safer but no less wrong motte of “they just can’t get along” and “these people can’t agree on anything!”

This is a fundamentally incomplete, ignorant and immature view of what is going on. It can be seductive to adopt it because it is easy and fast and can be summarized nicely into a pithy narrative or give us a ready-made strategy or approach. But it runs counter to what we know from our own lives, our own observations from our practices, and from the body of data both anecdotal and otherwise about the nature of high conflict disputes. Very rarely can matters be so easily diagnosed and "fault" attributed. Life is complex and messy. Our clients come to us with situations that often seem bizarre or confusing or complicated. Given that these are complex scenarios, why do we denude them of that complexity? And when we engage in caricature, and act upon it, when we depict and define and express a case in this way - do we not engage, feed into and ourselves enter into that dynamic -- thus further enabling and enshrining so many of its malignancies or its maladaptive character continues? Of course we do.

What if we looked at these matters through a different lens and guided our clients accordingly? What if we posited that neither dad nor mom is “crazy” or “bad”? What if we rejected this as being a unipolar or even bipolar issue? What if we made ourselves reject blaming, diagnosing, defining and labels and looked at what is occurring as if it was a supply chain crisis or an organism or power grid — through a complex systems approach? We say we do this and sometimes we think we do this, but I am not convinced that we actually do this or that we sustain it even when we do. I am even more convinced that we do not let it consistently and fully inform and guide how we navigate clients through these matters.

Thinking in this vein, we would consider the multiplicity of interactions, dependencies, competitions, and connections. We would consider the possibilities of spontaneous order. We would explore how this system operates and adapts. We would look at emerging properties within it. We would have a keen eye to suss out feedback loops that get created. We would think in terms of networks, nodes, borders, and boundaries. This would be an anti-reductionist approach.

I’m not going to suggest here exactly when, where, or how we do that - or what it then further suggests for how clients operate, communicate or behave. Perhaps like you, I have specific thoughts and views on those things that I prefer to keep to myself, my clients and my colleagues. What I do want to suggest more broadly to our peers is the WHY we should do that. We should do that because it makes sense. We should do that because, when we have done it, we have inevitably aligned and tracked more closely to where the psychology is or with what concerns it. We position our case in a manner that is better suited for a positive outcome for our client - provided that the lessons learned from it have been appropriately integrated by the client. Moreover, when we do that, we are far closer to the "truth," such as it ever can be known in these "Rashomon" like settings.

We do that, bluntly, because you can win with cheap chicken but not over the long term and not when the stakes are high enough that the sophistication of the dispute is being fully appreciated by those involved and is being handled by professionals who can truly diagnose and convey what is going on. This brings us to the concept of ergodicity that Ole Peters, Nassim Taleb and others have explored in depth and so well. Cheap chicken litigation is a bit like playing Russian Roulette, the example often used to explain the concept. You can play it as an individual life-gambler and survive once or twice (maybe a few more if lucky). But given the nature of custody litigation, those 1 in 6 odds are not sustainable for us as individual lawyers over time. When a single lawyer does cheap chicken trial work, he or she is playing a real-world variation on the game of Russian Roulette over and over. That person will not make it. That is very different from 6 or 16 or 100 lawyers doing cheap chicken and playing the game of Russian Roulette once. Ergodicity deals with the distinction of looking at ensemble probability versus time probability. In an ergodic setting, the average outcome of the group of litigators will be the same as the average outcome of the individual lawyer over time. We should not care what works for the “average” of litigators any more than we care for the average of one time players of Russian Roulette. We should care what works for ourselves and our cases over time.

Now, one might retort — but cheap chicken works! It does not. It works occasionally and in particular settings with certain variables that I won’t express directly here, but that astute readers can no doubt intuit. It is a mistake to extrapolate from those scenarios to something more broadly applicable. The reason cheap chicken litigation does not work over time and in generalized settings is that it is false and runs contrary to what is true and/or what drives results most often. Returning to our subject matter and to conclude, child custody matters are complex systems. The legal standards of best interests that guide the judge adjudicating them are greatly informed by the psychologically oriented consideration of needs, attributes and fit. The varied and many considerations of our forensic psychological peers who opine on those topics are what compel our taking the psychologically sophisticated and non-caricatured view of these disputes we litigate. And most importantly, not only is proceeding this way positive from an adversarial or litigation perspective, it yields more human, humane and positive results in the real world. Many people think parlor tricks are the solution in high conflict litigation -- i.e., you need to attack, surprise, position or polarize a case. There is some of that, no doubt. But with a complex systems framework, of identification, integration and implementation, less of that is required. And the collateral damage to the participants of that system (parents and kids) and the second order, iatrogenic effects of cheap chicken litigation can be thereby minimized.

I need to run for now. I'm hungry for some reason. A burger sounds good.

7 views0 comments