Thursday, January 30, 2014

A Family Lawyer's Guide to a Kids-First Divorce

If you live in Louisville -- whether you're an artist or an attorney, a social change agent or a social butterfly -- you're going to run into Holly Houston.  This lady is everywhere, y'all. She's a leading family law practitioner, an advocate for social justice and volunteerism, and a writer.  Her bio states: 
A. Holland “Holly” Houston has practiced family law since 1997. She is collaboratively trained but has also most recently been called “a pit bull in a skirt” and told she needs her own tv show. You can email her at hollyh@win.net. She is the co-founder and co-director of GLOW, Greater Louisville Outstanding Women, an organizer and founder of Women Mean Business in Kentucky, an informal regional women’s leadership and business group, a mentor for Louisville Girls Leadership and Chair of the new Human Rights section at the Louisville Bar Association.
"A pit bull in a skirt" -- what a great description! So, when I read that January is International Child-Centered Divorce Month, Holly wasn't just the top of my list for potential guest-posters. She was the list. -- HCW




I was in Judge’s chambers a week or so ago talking to one of our ten Jefferson Family Court Judges about peaceful parenting for divorced parents and parents who are no longer together. On its surface, the concept seems so organic and so mindful of children’s best interests. In what is arguably an age of the most indulgent parenting in our history, parents inevitably put the kids’ needs first, right? Unfortunately in my experience it is the exception rather then the rule that once-intact couples are able to detach from blaming the partner for the breakup, and buck up, shut up and put the kids first.

To be sure, a combative personality combined with a desire to punish and a high need for drama almost guarantee long term, expensive, everybody-loses-litigation that recent studies show has nothing but a negative impact on kids of divorce. On the other hand (and I have seen this be true every time) parents with strong coping skills and support systems who exhibit an ability to shield their children from controversy with the other parent over money, schedules and new partners for example, reach settlements faster and manage to co-parent effectively with well-adjusted kids and few, if any, returns to Court for anything other than minor adjustments to agreements.



The premise of a recent law review article published in the 2013 Fall issue of the Family Law Quarterly, “Deconstructing the Impact of Divorce on Children” by Sol E. Rappaport, is that following the initial impact and stress of divorce, children of divorce fare just as well as children in intact families. “In fact, most children of divorce are not distinguishable from their peers whose parents did not divorce in regard to behavioral and emotional difficulties,” Rappaport wrote, but for five characteristics he set out on page 361 that can predict long term psychological damage to a child. They are 1) the level of parental conflict (including the children’s exposure to the conflict and the children’s perception of it) 2) parents’ mental health issues that may include depression and active alcohol and drug addiction 3) the level of involvement by what he called the “non-main caregiver” or the impact of an absent parent 4) the financial impact of the divorce to include a parent’s poverty and finally 5) a child’s own perception of the divorce. 

I would add to the list: name-calling to include derogatory nicknames for a parent, disparagement, blaming the child for the divorce or for the parent’s sadness, anger or lot in life, emotional incest (“We’ll be okay honey as long as we have each other” spoken by a parent to a child or “I don’t know what I’d do without you” said to sway a child from spending more time or having fun with the other parent), interrogating the child about the other parent or the parent’s lifestyle or income or new partner, and of course, continued threats of violence between parents or in either family. While it’s clear that job losses and other financial hardships trigger stress for divorced and intact couples, how co- parents manage the stress makes all the difference in whether a parent’s divorce negatively impacts children. 

“Parenting style and parenting skills are clearly risk factors or buffers that can impact how children cope with divorce,” according to Rappaport. A client personality characteristic that seems to be the most damaging in my experience to the case and the parties, both during and post litigation, is angry blaming by one parent of the other for the other parent’s circumstances, the death of a dream, for being a liar or a cheater or just a loser, combined with a desire for revenge at all costs. Blame the other parent and expect your children to model what it looks like to be a victim or a perpetrator. Or worse, watch your child get caught in a vicious triangle of victim, perpetrator, and rescuer. 



When I was growing up, my parents had a scroll that spelled out parental behavior and its consequences on developing children’s personalities: When a child lives with conflict, a child learns to fight, and so on. Unbeknownst to me, that scroll likely foreshadowed much of my approach to advising high conflict/low stress tolerant clients. In a nutshell, you reap what you sow. As an adult, I stumbled on affirmative parenting messages on a friend’s refrigerator of all places that are designed to raise a confident and secure child. Among them: “You can do it.” I’m here for you.” and “I love you no matter what”. [Ed. note: The scroll referenced the poem "Children Learn What They Live" by Dr. Dorothy Law Nolte.]

I have shared those messages over the years with clients in attempts to help them preface the “We’re getting divorced” talk with the kids or to counter overwhelmingly hurtful and negative messages from the other parent. That having been written, affirmations only go so far. Ultimately, a parent’s willingness to do whatever it to takes to prioritize his or children’s emotional welfare, including seeking and undergoing mental health counseling individually or with an ex-partner to bury the hatchet, is the greatest predictor of successful co-parenting in my experience. It takes what it takes.

Retired Judge Richard FitzGerald is masterful at structuring settlements to mitigate conflict in two parent homes. When the tide turned toward joint custody as a default in Kentucky many years ago, he was a pioneer here for provisions that forbid unilateral decision-making in joint custody cases in which the parents maintain autonomous homes. While parents share decision making around the children’s upbringing, each gets to set the rules in his or her own home.



Ideally, the rules are shared between households and mimic each other. When they’re not, the children generally are the first to let the parents know they get to do x at mom’s and not at dad’s and it’s up to the parents to attempt to reconcile the rules or not. Different rules around chores and computer time have much less of an impact than a parent’s withholding information from the other in what can turn into a sick game like withholding grades and report cards and recital dates and insurance cards. 

The use of email communication and applications may nip the withholding game in the bud if the parties use applications and software such as Google calendar and scheduling software and scan and email promptly what should be shared documents. Effective co-parenting includes an organized and predictable method to share kids’ activities, track appointments, share assignments and schedule holidays and vacations. Some parents may be able to share information via phone and some may only be comfortable communicating via email. Regardless of the chosen communication though, any tool that negates arguments between parents that children are privy to is a bonus. 

If I have learned anything in Judge’s interviews with kids in custody cases it’s first, that they are likely to say almost anything you will probably not be prepared for and second, they know exactly how to manipulate their parents in high conflict cases to get what they want. Clear communication between mom and dad without children in the middle is probably the cheapest and one of the best gifts divorced parents can give kids and each other. 

Inasmuch as neither practitioners nor clients are na├»ve enough to believe that downloading an app will solve parental conflict, family lawyers may be wise to recommend their use to save both money and time in cases with low to mid parental conflict. For high conflict cases in which every text turns into a disaster, nothing beats therapy and a parenting coordinator, services parties can agree on between themselves or a Judge can Order if presented with sufficient information that meets statutory criteria. Also, as with all family cases, choice of counsel plays a role. Typically bombastic clients seek litigation happy lawyers. Conversely, clients who want a peaceful resolution will find lawyers who are skilled negotiators and pride themselves as such with no desire for protracted “custody battles” that carry a high price tag for clients and generally very little satisfaction for either parent (not to mention the child). 

Kids are sponges. Parents are models. When parents have their own boundaries and are able to articulate what is acceptable behavior and what they won’t tolerate, they are able to teach the children to how to communicate what they need effectively to the family’s benefit. If it takes counseling to get there, so be it. Most of us could use a little help with a lot. Whether Post-Decree or post-breakup, the truth is parents are inescapably bound together by the children they conceived. What they do to fortify their new entity as parents who are no longer a couple, yet responsible jointly for the well being of their kids, is up to them. In the end, would you rather have happy kids or would you rather be right?


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5 comments:

  1. Replies
    1. Thanks, Lauren! Holly is a delight to work with!!

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  3. I love this! I wish I could work for her! Sounds like just the kind of attorney I aspire to be. Family law is such a unique practice. We have the opportunity (and I think responsibility) to shape children's lives…our impact goes beyond the courtroom makes a difference - hopefully a positive one!

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  4. If all divorcing/separating parents could read this and take it to heart, can you imagine how much better it would be for kids?

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