Full-blown custody and access disputes cost plenty – not only in dollars — but in the toll they take on families. Once in a while, when one parent is truly neglectful, abusive, or struggling with substance abuse, there is no choice but to do battle in the courts if that’s what it takes to protect the children. Relocation cases — especially when the proposed move is motivated by malice – are another situation where resort to the courts may be necessary to protect the parent/child relationship. However, too many custody and visitation cases have more to do with a power struggle between embittered parents than about the real needs of the children.
Experienced divorce lawyers are familiar with a pattern that develops when a negotiation over custody or visitation goes toxic. Typically, one or both parents reject a suggestion of the other almost as soon as it is made. Soon it becomes clear that the discussion cannot be shifted away from notions of winning and losing. Any concession – agreeing to pitch in for more than half of the transportation; allowing an extra overnight visit; permitting an out-of-state vacation – is viewed as a defeat. These reactions have nothing to do with fairness, let alone the best interests of the children. Instead, they are issues of vindication.
Another hallmark of a toxic custody or visitation dispute is that the discussion turns, inevitably, to adult issues. Unless the cause of the breakdown of the marriage has also caused a breakdown of the father/child or mother/child relationship, it should play little part in negotiations over a parenting plan.
Often, lawyers’ efforts to diffuse these disputes and to re-focus on the needs of the children are met with distrust and frustration – a feeling that the lawyer is indifferent to the pain that the offending spouse has caused. In truth, lawyers are legitimately concerned about how their client will be perceived by the court if they fail to engage in reasonable compromise.
Judges have little patience for these fights because they have been trained to understand that children are the ultimate losers. Commonly, parties who enter the courtroom convinced that a judge will share their indignation over a spouse’s behavior, come away – even before a decision has been rendered – with a stunned realization that it is they who have attracted the sternest reprimands from the bench.
Some time ago, Connecticut family judge Elaine Gordon produced a video for parents who are thinking of using the courts to settle their custody and visitation disputes. In it, she sites an alarming study identifying a long list of lasting mental health problems that beset children and adults whose parents have gone to trial on custody issues. The video appears on Connecticut’s official judicial website and is well worth a look for anyone considering taking a child-related issue to court. You can bet, if you do, that your judge has seen it as well.
The lesson here is to make the strongest possible effort to achieve a healthy parenting plan for your children, but to do so, whenever possible, through serious and selfless negotiations and to set a goal to reach agreement before trial.