The ugliness and hurtful allegations that seem common to celebrity divorces, are also mainstays of many custody fights. There are painful truths about custody battles you need to know.
They’re always ugly, always expensive and once started, there’s rarely any backtracking. Once the accusations have been made, there’s no taking them back. They can’t be erased.
The impact these battles have can spread far and wide. The children at the center of the arguments are always exposed and involved, and friends and family members are rarely immune.
There are however, times when parenting absolutely does need to be restricted for the safety of the child. So how do you know when to fight and when to settle? How can you be sure you’re making the right decision for your child? Are there alternatives that are less damaging for all?
Joining Mandy for this Conversation is Connecticut-based family law attorney Larry Sarezky. Larry is the author of the book Divorce Simply Stated (available on Amazon) and he also wrote and directed the award-winning film, Talk To Strangers, which is aimed at helping parents avoid putting their children through a court-based custody battle. Listen in below or keep reading for a synopsis.
Custody Battles Are Always Harmful
The custody battle process is very tough on children and it exposes them to prolonged conflict. It’s emotional traumatic for adults and the trauma is exponentially worse for children. Saresky believes these battles are harmful for all kids in the short term and for a percentage of children, they are harmful in the long term because they either create or worsen emotional issues that the child then carries into adulthood.
“I tell my clients that divorce need not be harmful to kids but once you go down that child custody road, all bets are off, ” said Saresky.
There are some cases where children do need to be protected. These typically involve the risk of abuse, abandonment or a parent with substantial untreated mental illness or substance abuse. In these situations, going to court is often necessary and this is what the courts were designed to deal with.
“The kids come out the winners but they have to pay the price going through the court process,” said Saresky.
The Legal Process Is Brutal
Saresky says the process humiliates, frightens and compromises everyone involved.
These cases are identified early on in the legal process as “fully contested cases.” Usually, a court counselor is appointed to try to get the parents to agree although the process does vary from state to state and even by jurisdictions within a state.
Once a case is on the custody track, then there are a wide range of professionals that get appointed, they all have to paid and it’s typically the parents who pay. For example, children who are too young to be able to articulate an opinion, often have a Guardian Ad Litem to represent them. Older children may have an attorney separate and apart from the attorneys representing their parents and there could be different attorneys for each child. The process also involves mental health professionals who are charged with evaluating the fitness of each parent.
Another reason the process is brutal is that much of what is filed in a divorce is publicly available information. That’s why we get to hear the sordid details of celebrity divorces. Saresky believes that too often, too much is disclosed and it is very difficult for children to grow up in that environment.
Many people involved in custody disputes feel that the accusations made against them by the other party are false. While states do have rules about false claims, Saresky says these are rarely enforced because any competent lawyer can usually find a basis for filing a particular statement.
There Is No Defined Timeline
Unlike an uncontested divorce where some states have a clearly defined process and a clearly delineated minimum time period between filing and final decree, there are no set timeframes for custody battles. They can and do take months and months and months.
“The typical length is too long,” said Saresky. “It will easily double or triple the length of your divorce.”
While kids just want the legal process to be over, custody battles subject them to more and more pain.
For example, as part of the psychological evaluation of each parent, the mental health professional will most likely want to talk to the children, to friends and to teachers. The more people the professional feels it is necessary to interview, the longer the process will take, and possibly, the more it will cost.
There Is No Way To Shield The Children
“Almost, always the children are going to talk to someone, which is never a good thing,” said Saresky.
That person may come to the home or the child may come to that person’s office. The person’s goal is to find out the child’s wishes. However, this puts the child in a no-win situation. No matter what the child says, one parent will be painted in a poor light. The child may be more worried about the impact of what they are saying on a parent than on their own needs.
They Are Not Fueled By Attorneys
There’s much about conflict in divorce that is commonly blamed on attorneys however Saresky said, “I like to think that the majority of attorneys will try to avoid unnecessary child-related litigation.”
The more common cause of custody battles when there is not a legitimate concern to restrict parenting is the parents’ inability to avoid the court system.
If one parent is seeking to restrict parenting and is forcing that through the court system, then the other parent must respond and it becomes difficult to avoid a courtroom battle. Saresky says one of the worst case scenarios is when one parent has a personality disorder. They may be more inclined and comfortable with conflict in general and with litigation.
Child custody battles are generally not suited to self-representation and that’s a primary factor in the cost. If your other parent is represented by an attorney, you would be best served by having an attorney too. If you go pro se, “you do so at your own peril,” Saresky said. There’s just too much about courtroom procedure that you won’t know how to handle.
“You may have a very strong case and get knocked out because of some procedural aspect that you had no idea about,” said Saresky.
Alternatively, you can use an attorney for unbundled representation where they handle one aspect of your case. This might be advising you on how to handle yourself, for example, or the agreement might be for the attorney to represent you at the temporary custody hearing. It’s a good way for you to get professional legal advice without it breaking the bank.
Courts Are Not The Best Place
“The court system is an all or nothing deal too often, ” said Sareksy who feels that these cases are best handled in an Alternative Dispute Resolution setting such as mediation or collaborative divorce which offer a better opportunity for a negotiated settlement. “You win or lose in court and you don’t want to take that chance.”
In an ADR setting, the divorce professionals can help the parties reach an agreement. They’re more likely to be sensitive to the language that is used, avoiding words such as custody and visitation which can be laden with hidden meanings and inflammatory. They’re more likely to talk in terms of parenting time.
Agreements that are made through ADR more likely to be customized to the specific situation.
“There are a range of options available and it will take some time for parents to ferret them out,” said Saresky. Working with divorce professionals who have handled situations similar to yours and who can seek input from other professionals will help create the foundation for resolution.
Another advantage of using an ADR approach is that the materials and discussions are confidential and this helps to maintain the privacy for all involved. The final agreement is filed and may be public but none of the discussions or background reasoning for the agreement, become part of the court records.
Explore Other Options
A common mistake that parents make is thinking that a particular behavior by the other parent should mean no parenting time. However, parenting is not an all or nothing thing.
Parents do have a fundamental right to parent their child and there is no definition of a perfect parent. The court isn’t looking for which parent is the better parent but rather what is the risk of harm to the child when in the care of a parent.
Until faced with a particular situation, parents are often unaware of the range of options that may be available that would protect their child in that situation. A child who has a parent who is struggling with a drug or alcohol abuse, for example, may be protected from harm through using supervised visits or regular drug/alcohol monitoring tests. A child who hasn’t spent much one-on-one time with a parent may be protected through an agreement to parenting classes and a graduated parenting plan whereby the time with the parent is increased slowly based on how well each visit goes and input from the child’s therapist.
Saresky recommends that any agreement that parents do make needs to be put in writing and filed with the court so it becomes a court order. Violating the agreement then means that a contempt motion can be filed which can usually be heard pretty quickly.
“Judges take a dim view of anything that puts children at risk,” said Saresky. The problem is that judges usually don’t get involved until trial and that’s why the ADR process may be a better solution.
Get Professional Help
If you have concerns about your child’s well-being while in the care of their other parent and you’re wondering about restricted parenting, then Saresky suggests working together with a mental health professional. It’s not easy and it is a painful process, however such a professional is more equipped to help identify where children are at risk in a non-belligerent way and will be able to make suggestions for how you might handle the particular concern. With a negotiated resolution, both parents are vested in the outcome and are more likely to abide by the agreement.
Deciding to seek restricted parenting time should be an agonizing decision. It needs to be truly about what is in the best interest of the child. That means ensuring that the reasons for restricting parenting are legitimate and not rooted in one parent’s emotional challenges and feelings about the end of the marriage. It requires a realistic, rational and truthful assessment of the danger the child’s other parent poses to them. It requires recognizing when a different parenting philosophy is simply that and when it it is a threat to the child. And it is not easy because with all of that said, the responsibility for taking action and keeping your child safe, is yours.
Mandy’s guest for this Conversation was Connecticut-based family law attorney Larry Sarezky. Larry is the author of the book Divorce Simply Stated (available on Amazon) and he also wrote and directed the award-winning film, Talk To Strangers, which is aimed at helping parents avoid putting their children through a court-based custody battle. You can stream the film from the website and it is accompanied by a parent’s guide.