Attorney for the Child: When the AFC believes the child lacks capacity, or that the child’s wishes are likely to result in harm?

In my last post, I began writing about the role of an Attorney for the child (AFC), focusing on the following questions:

  1. What does an AFC do, generally speaking?; and,
  2. What if the AFC believes that what the child wants is not in the child’s ‘best interests’?

Question #2 assumes that, though the AFC disagrees with the child (client) on some matter, the child is capable” of making decisions

Here, I continue with a different question:

What if the AFC believes the child lacks the capacity for knowing, voluntary and considered judgment, or that the child’s wishes are likely to result in harm?

According to the Code,

When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child’s wishes. In these circumstances, the attorney for the child must inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position.[i]

A child may be deemed to lack the capacity not only due to age, but also due to mental illness.[ii]

Note that the AFC would be justified in advocating a position contrary to the child’s wishes if the AFC is convinced that,

following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, . . .[iii] (emphasis added).

While an AFC may act in opposition to the child’s/client’s wishes under certain circumstances, the AFC’s ability to do so is limited.

The standard leaves room for doubt – for instance,

What exactly does “serious harm” mean?

What does “imminent” mean?

Though these questions are debatable, perhaps even amongst judges, an AFC does have to meet a certain standard.  An argument by an AFC that something bad might happen years in the future as a result of following the child’s wishes, would be unlikely to meet the standard’s criteria of “likely to result” and “imminent” harm.

Note further that the AFC,

must inform the court of the child’s articulated wishes if the child wants the attorney to do so, . . . (emphasis added).

Speaking for myself, I like the idea that the court will be informed when the AFC and child disagree.  (The “must” part of this text).

But this requirement to inform the court is conditional; the AFC must inform the court if the child wants the AFC to do so.  This qualification concerns me.  You don’t need to be a mediator to know that many adults have difficulty expressing their needs and handling conflict well.  Can we expect children – who are probably under great stress due to the parental conflict, and very possibly caught between their parents – to express their disagreements with a lawyer, and be strong enough to say, “I want you to tell the judge my wishes on this matter, even though you don’t agree with me”?

It seems a lot to ask.

Whatever the answer, be aware that an AFC may be part of your case.

[i] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(3).

[ii] For that matter, adults may also lack the ‘capacity’ to make decisions due to mental illness.

[iii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(3).

 

 

Attorney for the Child: What is it? What does one do?

If you’re a parent in family or supreme court for a case relating to a child custody issue, you may have a lawyer representing you.  Of course, the other parent may also be represented by a lawyer.  But did you know that your child/ren may also have an attorney?[i]

For some parents, it is a strange idea; but if you are in court and are not able to settle the legal issues with the other parent, a lawyer may be appointed to represent your child.

What does an attorney for the child do?

An attorney for the child (AFC) ““must zealously advocate the child’s position.”[ii] (emphasis added).  That is to say that, just as each parent has ‘a position,’ a child may have one of his/her own as well.

An example:  you and your spouse or partner are separating.

You want your child to live with you.

The other parent wants the child to live with her/him.

But what does your child want?  An AFC is concerned with this question – and will represent a child much as your attorney (if you have one) might represent you.  Just as a lawyer for an adult will consult with and advise the client,

“. . . , the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances.” [iii]

Implicit in the role of an AFC is an acknowledgement that children have their own views, wants, and needs – and that they may be in opposition to those of one or both of the parents.

What if the AFC believes that what the child wants is not in the child’s ‘best interests[iv]?  

If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.[v]

It is not the role of an AFC to substitute his or her judgment and impose it on the child/client.  If the child is “capable” of making the decision, the decision is up to the child.

Generally speaking, the older the child, the more likely it is that s/he would be considered, “capable of knowing, voluntary and considered judgment.”  Obviously, a reasonably well-adjusted older teenager would be considered far more “capable” to make decisions regarding her/his interests than let’s say a five-year old.

Next time, I’ll continue writing about the role of an AFC, looking at the question:  What if the AFC believes the child lacks the capacity for knowing, voluntary and considered judgment, or that the child’s wishes are likely to result in harm?


 

[i] There are other situations where a lawyer may represent a child.  “In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child.” N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(c).

(For all of the text that I quote in this post, see https://casetext.com/regulation/new-york-codes-rules-and-regulations/title-22-judiciary/subtitle-a-judicial-administration/chapter-i-standards-and-administrative-policies/subchapter-a-rules-of-the-chief-judge/part-7-law-guardians/section-72-function-of-the-attorney-for-the-child.)

[ii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d).

[iii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(1).

[iv] https://codes.findlaw.com/ny/domestic-relations-law/dom-sect-240.html

[v] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(2).

 

How Long Would Mediation Take in My Case?

Elsewhere, I have written about on “Why Mediation Is Faster than Going to Court”.  Here, I want to share information about how long you should expect mediation to take in your case.

As something of a baseline, many spouses complete divorce mediation within three to six months.  Of course, a case may take more time, or less.  But what can you expect?  The answer greatly depends on you and your spouse or partner.  Consider the following factors:

Complexity of the case:  Some cases take longer than others because there are more issues to deal with.  Do you have children, own a home, have investments and so on?  You’ll have more work to do than couples that don’t.  Parents having three children may need more time to discuss and reach agreement on their kids than parents with one.  If a child has special needs, that too may warrant a longer conversation and perhaps the gathering of additional information.  Have a Picasso?  You might want to have that appraised, and scheduling that appointment may take time.  Far more common is meeting with an accountant, financial planner or lawyer.

Communication between you:  Can you and your spouse speak civilly and listen to each other? Or, do you bicker constantly?  It shouldn’t be surprising that couples who communicate fairly well go through the mediation process more quickly than those that don’t.

There are spouses who can even work well together outside of sessions.  If that is you, so much the better; you’ll not only save time, but money as well, as there will be less to mediate about.

Doing the work that’s required outside of sessions:  At a session, did you tell the mediator that you would have that Picasso valued, but just can’t seem to find the time?  Yeah, that will hold things up, the same as if you don’t find out what your home is worth, or gather bank statements and other information that needs to be discussed.

Length of sessions:  If you have the information you need and are ready to discuss it, you can accomplish more in a two-hour session than a one-hour session, allowing for fewer (but longer) sessions overall, and maybe over a shorter period of time.  But making sessions longer only makes sense up to a point.  (Some parties prefer to stop after one hour, and in those cases, that is what we do.)

Even after ninety minutes or the two-hour mark, many people are tired, and it doesn’t help clients to keep going if they aren’t thinking clearly; the same can be said of the mediator.  Marathon sessions, lasting for hours – in which some divorce mediators engage – doesn’t make sense to me, and so I don’t do it.

Your respective schedules:  If you both are available to meet pretty regularly, and without much time between sessions (say, every week or two), the mediation will go quickly.  But there may be a demanding work schedule, perhaps including out-of-town travel.  There are parenting responsibilities that trump everything else.  Holidays and birthdays, school plays and work functions.  Planned vacations and the unexpected broken pipe.   A lot of what can affect the length of the mediation may have nothing to do with your separation or divorce, but rather with the other things going on in your lives.

Conclusion:  Consideration of these factors should give you a good sense of how much time mediation would take in your situation.  Again, if you are like most people, the chances are very good that you would complete the process within three to six months.  But wherever you are on the continuum – or even if you fall outside of it – if you and your spouse or partner are good candidates, you can expect to spend a whole lot less time (and money) in mediation than you would fighting it out in court.

Parentification: A Damaging Role Reversal

Separation and divorce can be devastating.  “Jennifer”, who hadn’t wanted the split, cried continuously for days.   She felt sick, and had to force herself to eat.  Her every thought included painful ruminations on what she had or hadn’t done, fears about money, self-sufficiency and loneliness.  An expensive and bitter court battle appeared likely, and Jennifer was overwhelmed.

During divorce, when we need to be at our best for our children, we are often at our worst.  Feeling vulnerable, we may lean on our kids more than is healthy.

Parentification, a type of role reversal where a child cares for the parent rather than the other way around, is a prime example.  For a weary, even shattered adult, relying on a child can ease the burden; but, it is damaging to the child.

Ari E. Fox, LCSW, a child and adolescent therapist in New York City, told me that “parentification can rob an individual of his childhood by placing an enormous level of stress on the child, forcing him to grow up too quickly,” and that the parent may turn the child into a full-fledged confidant or even a pseudo spouse.

A child may also be relied upon to perform an excessive amount of the chores and take care of younger siblings.

Of course, assigning chores and having a mature older sibling babysit on occasion can help children learn responsibility (and make your life easier); and, sharing a certain amount of information with them is necessary.  An example:  If you need to move to a new home, it is better to tell your children beforehand so that they have time to adjust, rather than surprising them with the news the night before.

So what are the limits?  What is appropriate to share with a child?  Ask yourself the following:

Do you think of your child as your “best friend”?  Upon coming home from a date, do you share many details with your son or daughter?  When dealing with stress, do you look to your child, figuratively or literally for a shoulder to cry on?

If so, you may well be crossing a line, to the detriment of your child.  Granted, older teenagers can generally handle more than younger children.  But, there should be very real boundaries.

It is one thing to breakdown in front of your children on occasion.  This happens, and can even have a positive side in that it allows children to see that you are human.  But, such an experience can be very frightening – children need to know that you are in control, and may wonder “If Mom (or Dad) can’t take care of herself, how can she take care of me?”

So after the well-deserved meltdown, let your child know you are alright.  Maybe say, “I’m sorry about the crying/sad faces/slamming the door.  Sometimes it’s hard, and I don’t handle the stress so well.  But mostly, I’m doing okay.  The time I spend at Aunt Judy’s/swimming/the support group/taking my computer class really helps me.  I know we’ll get through this and that things will get better.”

Be aware:  children may not see any problem in acting the adult. Hearing about the new man or woman in your life can make a daughter or son feel grown up, and what kid doesn’t want that sometimes?

But, while children may seem to handle the grownup role, they pay a price.  Fox noted that parentified children “often have difficulty with attachment and struggle with relationships as adults.  They can become quite angry at their plight and what they have given up in their lives.”

We all need help sometimes – but shouldn’t look to our children for it during divorce.  Consider a support group, therapist or divorce coach.  Do what you need to strengthen yourself – and let your child worry about his next math test, acne and getting a date with that girl he likes.

‘Gray divorce’: How much of the growth in older people divorcing is due to the reluctance to try counseling, or skepticism that it can help?

Therapists have told me that when there is conflict, younger couples often begin therapy earlier than older ones. How much does this reluctance to begin contribute to Gray Divorce?

In 2013, a study came out entitled, The Gray Divorce Revolution: Rising Divorce among Middle-aged and Older Adults, 1990 – 2010.  Authored by Susan L. Brown and I-Fen Lin, both in the sociology department of Bowling Green State University, their research is revealing.

Here are some of the results:

  • The divorce rate among adults ages 50 and older doubled between 1990 and 2010.
  • Roughly 1 in 4 divorces in 2010 occurred to persons ages 50 and older. . . .
  • The rate of divorce was 2.5 times higher for those in remarriages versus first marriages while the divorce rate declined as marital duration rose.

The study looked at many factors and circumstances that may contribute to gray divorces. Some of them are directly related to “the unique events and experiences characterizing” the “life course stages” of middle age (50 – 65) and older adulthood (65+). During these stages, “many couples confront empty nests, retirement, or declining health, which can pose considerable challenges for marital adjustment. These turning points can prompt spouses to reassess their marriages, ultimately leading them to divorce.” (Citations omitted)

Other findings include:

  • Middle-aged adults are experiencing a higher rate of divorce than older adults.
  • Men and women 50 and over are divorcing at very similar rates (9.8 divorced men per thousand married persons; 10.3 women divorced per thousand persons).
  • “There is some racial and ethnic variation in the risk of divorce among those ages 50 and older.”
  1. Blacks (20.5 divorced persons per 1,000 married persons)
  2. Hispanics (11.3 divorced persons per 1,000 married persons)
  3. Whites (9.0 divorced persons per 1,000 married persons)
  • “The divorce rate also differs by economic resources” – including education. Those with a college degree experience a considerably smaller risk of divorce compared to those with lower levels of education.
  • The rate of divorce is highest among the unemployed.
  • Older adults who are not in the labor force (presumably because they are retired) have the lowest divorce rate.

One factor that isn’t considered by the study is the hesitation by those who are older to engage in therapy.  While a younger generation has grown up with the idea of meeting with a psychologist or social worker, for people who are older the thought may have more of a stigma.  For older adults willing to try therapy and couples counseling, how many are skeptical or so uncomfortable that they are unable to fully engage in the experience, and therefore end the process prematurely, or otherwise hold themselves back and greatly lower the chances that it will be helpful in saving their marriages?

In addition to factors that apparently contribute to gray divorce, the authors discuss the “implications for individuals, their families, and society at large.”

  • It is likely that divorce has “negative consequences, particularly for those who did not want the divorce or who are economically disadvantaged or in poor health.”
  • “Divorced older adults no longer have a spouse on whom to rely and are likely to place greater demands on their children.” These children may be asked to serve as care givers in lieu of the absent spouse. “The strain of such intense obligations may weaken intergenerational ties. . . .
  • Adult children are particularly unlikely to provide care to their divorced fathers.”
  • “Some older adults may not have children available nearby to provide care,” and so “the rise in later life divorce may place additional burdens on society at large, as divorced individuals will be forced to turn to institutional” assistance rather than look to the family for support.

The study, which the authors acknowledge has limitations, is somewhat alarming. But having this information will surely help society deal with the consequences of gray divorce, which are likely to become more apparent over the coming years.

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When a Conflict Can’t Be Resolved – Part 2 of 2

In Part 1 of this post, I discussed issues raised by Bernard Mayer in his book, Staying with Conflict:  A Strategic Approach to Ongoing Conflict.  As mediators, we talk about ‘Conflict Resolution’ and ‘Dispute Resolution’.  Our field is often called ‘Alternative Dispute Resolution’.  With so much of our focus on ‘resolution’, are we as mediators missing many of our (potential) clients’ concerns?  When we say to them that we help to resolve conflict, do some tune us out, because they know very well that not every problem can be fixed?

His answer is ‘yes’.  Many parties come to us with certain disputes that we may be able to help them resolve.  But frequently, they all also involved in ‘enduring’ or ‘long-term conflicts’ that aren’t resolvable, regardless of our skills and experience as mediators. These unresolvable disputes may, however, be manageable.

I’ll leave it to you to read Part 1 of this post as I continue now with the following question:

What does enduring or long-term conflict mean and look like for a divorcing couple; let’s say one with young children?   These parents know that they will have to deal with each other for many years to come.  Many such parents can reasonably expect frequent disagreements, tension, arguments, perhaps accompanied by pressure to give in and abusive language.

And so, if a mediator explains to such a couple that “I will work with you both so that you can reach agreement on all of the matters that you need to, so that you’ll be able to move on with your lives”, maybe that comes across to the parties as hollow.  Naïve.  Unrealistic.  Perhaps mediation sounds too good to be true, and so is seen as a waste of time and money.

In a blog post I wrote, Words Matter:  Out with ‘Custody’; In with ‘Parenting’, I discussed the importance of language when dealing with conflict.  While mediators know (or should know) this, we may be unclear in telling others about what we do, and what the potential parties can reasonably expect.  We can do better with our explanations.

Let’s see if this explanation rings truer and is more in line with the expectations of many people in conflict.  Let’s say it is for a couple ending their marriage.

  • If you’re getting divorced, I can help you to discuss the issues between you, and to reach agreements on all the matters you’ll need to, in order to be divorced under New York State law.  This doesn’t mean that all of your issues will be permanently resolved, and that you won’t have disagreements in the future, about your children, for instance.  Your kids will keep growing and changing, and you, the parents will change too.  You won’t always be on the same page.  But, part of my job is to help you consider what any agreements may mean for the future, to help you decide if they make sense for you.  And,  I’ll work with you to determine how to communicate in the future and handle questions that arise, to give you the best chance of dealing with them effectively and respectfully.

Recognizing that parties may be involved with an enduring conflict, and attending to such conflict, does not require ignoring the more immediate issues.  As Mayer writes:

  • A focus on enduring conflict does not mean that we are not interested in helping people resolve conflicts or achieve agreements on nagging issues.  We have an important contribution to make in this arena, and we ought not to sacrifice this important part of our work to our focus on enduring conflict.  But we also need to understand the role of agreements in enduring conflict.  They memorialize progress that has been achieved and create new and, we hope, more constructive platforms from with to continue the conflict t engagement process.  As we work with disputants on resolving issues in the course of an enduring conflict, we need to keep in mind–and help disputants to understand–that resolving issues does not end an enduring dispute.   (Staying with Conflict:  A Strategic Approach to Ongoing Conflict, pp. 269, 270.)

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When a Conflict Can’t Be Resolved – Part 1 of 2

Mediators have long asked themselves, and one another, why more people don’t engage in mediation.  The process has so many advantages and few drawbacks, that it is difficult to understand why relatively few people are at least willing to try it.

Consider that mediation:

  • is generally a lot quicker than going to court;
  • much less expensive;
  • less adversarial, as parties are helped to listen to and understand one another, and then to work together; as opposed to the polarizing experience of litigation;
  • allows the people having the dispute to make their own decisions, rather than a judge deciding questions for them;
  • is voluntary, meaning that either party can end the process at any time; and,
  • allows for greater creativity in developing responses and solutions to conflict; because the spouses (or other parties) are experts in regard to what they want and need (as opposed to a judge who is a stranger, and one loaded down with a large docket of cases that doesn’t leave him or her time to fully consider many options).

What’s not to like?  What’s the risk?  Why oh why don’t we (mediators) have an overflow of clients? So many clients that we need to refer and turn them away in droves?  Bernard Mayer – mediator, facilitator, trainer, researcher – offers an answer to the question that I had never thoughtfully considered before reading his book, Staying with Conflict:  A Strategic Approach to Ongoing Conflict.

I have long believed that most people don’t try mediation when they are engaged in a conflict largely because:

  1. they don’t have information about what mediation is/how it works, and so “don’t realize what they are missing” (including that the results are binding, if the parties want them to be);
  2. going to court is familiar – think about the hundreds of movies, TV shows and novels involving a courtroom drama; and now see if you can name three dealing with mediation.  While people know that going to court (and perhaps to ‘divorce court’ most of all) can be a bitter and difficult experience, doing so still means dealing with ‘the devil you know’; and,
  3. family and friends are quick to suggest what may be conventional wisdom – hire the meanest, nastiest lawyer you can; feeling vulnerable, and perhaps angry, saddened, tired or confused, people follow that advice, usually not knowing what they are in for, and that there are other methods that may well work for them.

In his book, Mayer discusses another reason:

Perhaps some people don’t believe mediators when we talk about helping to ‘resolve conflicts’ (or to ‘resolve’ disputes).   Alternative dispute resolution may not be credible to people engaged in what Mayer calls ‘enduring conflict’ or ‘long-term conflict’.

Example:  If a mediator told you that s/he could help the parties resolve a crisis in the Middle East (take your pick of which one), you would probably be skeptical, to say the least.  Many of the conflicts are deeply rooted and have been going on for decades or longer.  That anyone is going to resolve (end/finish) such a conflict doesn’t seem realistic.

But what if the mediator said to you that, “I think I can work with the parties to help them manage the conflict.  I don’t have any illusions that I or any mediator can help all of the parties I work with to settle all of the issues for all time.  What I can do is assist them in discussing some of the most pressing and immediate problems; I may be able to help them reach some agreement(s) to improve the situation (such as for a cease fire or prisoner exchange during a war).  As a mediator, I can work with them on choosing ways to keep communication going, and help them to take advantage of opportunities to work together as the conflict continues.”

If the mediator is referring to a crisis in the Middle East, what s/he is proposing – helping the parties to manage the conflict – is still a very tall order.  But it has happened, as hard as that may be to believe with the chaos engulfing the region at present.

Enduring conflict does not only exist on the international level, or have to involve matters of life and death.  Such conflicts may exist between business partners,  teachers and parents working with a special needs child, communities and local governments, environmental groups and industry, two parents over child-care issues or religious upbringing; and of course, in many other situations.

Next time:  What ‘enduring conflict’ may mean for divorcing parents; and for the mediators working with them.

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Words matter: out with “custody”, and in with “parenting”

I recently came across an article, ‘Custody’ and ‘access’ terms promote conflict, litigation. (Thanks to whoever shared it.)   The article appears on “AdvocateDaily.com:  Canada’s Legal News”, but is as valid for readers in the United States as it is for Canadians.

The subject of the article – how language affects conflict in parenting disputes – isn’t new. You may know that “custody”, the term found in many statutes dealing with arrangements for children following a separation or divorce, is the same word used in the criminal justice system (as in, “The suspect was taken into custody”).  It is also the same word that is sometimes used in regard to property.  But of course, children are not prisoners or property.

But, does language really matter?

Speaking from personal experience, I can say that one or two words can make a very big difference.  Many years ago, during my own divorce, I was absolutely infuriated when my wife’s attorney condescended to tell me that “Your daughter can visit with you.  You can have a room for her, with her own bed. . .”   I mean, how hard would it have been for that lawyer to have said instead, “Let’s talk about how the two of you as parents are going to raise your child.”  Like “custody”, “visitation” is a word associated with the criminal justice system.

The article notes that:

  • British Columbia is the first Canadian jurisdiction to change the terminology from “custody” and “access” to “parental responsibilities,” “parenting time” and “contact” in the province’s new Family Law Act.

How many of the states in the U.S. have done the same is a question I can’t answer.  (If you happen to know, please share that information).  But it is a step forward, and not an insignificant one.

One reason that the article made an impression on me is because a judge was quoted as saying:

  • “These words denote that there are winners and losers when it comes to children,” says Justice Mary Lou Benotto . . .  “They promote an adversarial approach to parenting and do little to benefit the child. The danger of this ‘winner/loser syndrome’ in child custody battles has long been recognized.”

When judges speak out, at least a few people tend to notice.  But, changes that would seem to allow for obvious improvements can be frustratingly slow; and, I’m not expecting the terms “custody”, “visitation” and “access” to be replaced nationwide anytime soon.

By the way, if you read the article, you will see that an attorney who is interviewed for it, Steven Benmor,  offers that “replacing [such] words with “parenting time” would be in the best interest of the child.”  [emphasis added].   Recently, I wrote about this subject for nyparenting.com, in a piece entitled Best Interest of the Child:  A Vague Notion.  The AdvocateDaily.com article does not define “best interest of the child”; but, it is interesting to see how this nebulous phrase – one that denotes an extremely important concept – is used.

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Considering a custody battle? Ask yourself – and your spouse or partner – the following:

Larry Sarezky* is a Connecticut divorce attorney who has put together the following ten questions for his clients.

In my own divorce, my greatest fear was “What will our child go through if we [the parents] fight it out in court?”  Sarezky’s questions articulate many of the potential consequences, and they are serious ones.

If you are a separating or divorcing parent, they are well worth reading and thinking about.

If you are a friend or family member of such a parent, you may want to pass these questions along.

If you are a divorce attorney, you may decide to discuss them with your clients.

  1. Do you want your children to endure months of anxiety and uncertainty as to where they will be living and whether they will have the relationship they want with each of their parents and their siblings?
  2. Do you want your children subjected to interviews by attorneys, mental health professionals and court personnel during which they will be afraid and conflicted, and will feel pressured to be loyal to both their parents?
  3. Do you want your children subjected to the possibility of inquiry by these professionals about the most personal aspects of their lives including their fears and frailties?
  4. Clinical studies have shown that high conflict between parents exposes children to serious psychological harm. Do you want to risk your children developing emotional disorders as a result of your high-conflict custody battle?
  5. Do you want your inability to resolve your differences to serve as a model of parenting for your children?
  6. Do you want intimate details of your life to become a matter of public record?
  7. Do you want a stranger deciding how much you will see your children, and how you will make decisions concerning them?
  8. Do you want a substantial portion of your assets used for fees of attorneys and expert witnesses with no guarantee that you will be happy with the result?
  9. Do you want to give up attention to detail that a negotiated agreement will have but that a judge’s decision will not?
  10. Do you want to engage in costly, time-consuming and rancorous litigation that can make future cooperation between you and your co-parent extremely difficult at best, and the resumption of amicable joint parenting nearly impossible.

* Larry Sarezky is a former Chair of the Connecticut Bar Association’s Family Law Section and an award-winning screenwriter and child advocacy filmmaker.  His articles on divorce have appeared widely. You can learn more about his efforts at:  https://www.facebook.com/ChildCustodyFilm/

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A Divorce Mediation Case (Part 2 of 4: Sessions on Parenting, Income & Expenses)

In my previous post , I introduced Bill and Angela who had decided to get a divorce.  Angela called and learned more about mediation, and shared the information with Bill.  After further discussion, they decided (Bill, a little reluctantly) to schedule a consultation, at which they got a sense of who the mediator is, and had more of their questions answered.

Here, I continue with both their first and second sessions.

November 10 – Session #1

● With the spouses permission, the mediator turns the discussion to parenting.

● Angela says that she wants ‘full custody’. Bill becomes defensive. They argue for a few minutes.  The mediator listens and considers whether the verbal exchange is constructive, and then raises a question.

● The mediator asks each to answer, “What do you mean when you say ‘custody’?

● The mediator listens and checks that s/he understands what each has said. The mediator then suggests that maybe the question isn’t “Which of you will have custody?”, but rather, “What agreements can you reach so that you can be the kind of parents you want to be to your children?”

● There is further discussion, some of it angry.  The mediator helps the spouses to fully express their concerns, and asks clarifying questions.  The mediator believes that, though Bill is having difficulty really listening to Angela directly at this point, he is able to hear her through the mediator’s restatements of what she is saying.  The focus is forward looking.  Each party acknowledges that the other has an important role to play in the children’s lives; neither wants to ‘take the children’ from the other.  With his fear of ‘losing the children’ alleviated, Bill especially becomes less tense, and the conversation is less strained.

● Bill and Angela agree to talk about parenting arrangements; at least for now, they are willing to leave the legal designations aside.

● Angela and Bill talk about the children: where they attend school, what they enjoy doing, their usual routines, and so forth.

● The mediator helps them to set out different possible parenting plans, which are discussed.

● The parents reach a tentative agreement on a schedule for the children. And, on how decisions involving medical, educational and religious matters will be handled in the future.  (The latter comes easily for them.)

● The mediator gives each spouse a blank form for setting out financial information.  Angela and Bill are both confident that they can fill in the information about their respective incomes and expenses within a week to ten days.  With that in mind they schedule the next session for two weeks later; if either needs more time to complete the income/expense parts of the form, they will let each other and the mediator know, so that the date of the next session can be rescheduled.

● The session ends after two hours, and Bill and Angela each pay $300 of the $600 fee.

 

November 23 – Session #2

● Angela and Bill arrive.  The mediator asks how they and the children are, and whether anything of note has happened since the last session.  They briefly discuss Thanksgiving plans.

● Angela asks a question about property.  The mediator gives the spouses a brief overview of Marital and Separate Property (and Debts), and makes a point of saying that this information is not “legal advice”. For instance, if either/both wants to know what a judge might decide regarding property, they are welcome to contact an attorney to get that advice. Both respond that they don’t see a need; instead, they’ll each meet with a ‘review attorney’ to review the separation agreement before signing it.

● The mediator then begins setting out Bill’s and Angela’s respective income and expenses. This is done using a flip-chart, so that all three of them can see the figures that the spouses supply.

● Bill questions why Angela is paying $400 month for clothes for her and the children. Bill isn’t angry; he just thinks the number is high. In discussing the matter, it turns out that Angela based her calculation on her September credit card statement, which has higher costs than average due to purchasing back to school clothing. Their daughter needed a lot of new thing because of how much she has grown over the past few months. Angela says that before the next session, she will look at her statements over the past year, which she can find on the computer, and take the average of that twelve month period. Bill thinks this is a good idea. The mediator makes a note to come back to this question.

● Angela asks if, since money will be tight, Bill can cut down on his recreational spending. Bill bristles at the suggestion, but looking at where his money goes, decides this is reasonable. In particular, Bill says that he can spend a lot less on sporting events and movies. Bill does a quick calculation, agreeing to reduce this spending by 10% each month, starting this month. He is confident that he will bring it down further, but feels comfortable starting at 10%.  The mediator, noticing Angela’s facial expression, asks if she wants to say something.  She answers that, “Well, I have mixed feelings.  I think Bill could do more here.”  (Bill immediately becomes upset.)   “But,”  she adds, “Bill is willing to commit to this, and says he’ll do more; and I believe he will.  (Turning to Bill)  And maybe it’s a good idea that you start with 10%; that way, you won’t feel deprived.  If you spent less now, you might hate it, and be angry with me, and we’d be worse off.  So, good.  Do the 10% for awhile.  Then, we can talk about it again in month or two.  Can we do that?”  Bill is still annoyed, but he also knows (and feels) that he is being heard by his wife.  He says, ‘Yes’.  They discuss what to do with the money that will be saved. Bill wants to use it to pay down a credit card, and Angela agrees to this.

● In regard to expense and income figures now displayed on the flipchart, the spouses agree that the numbers are pretty accurate.

● Bill raises a concern he has about the parenting agreement. He says that he has what is a minor change in mind that would allow him to spend more time with the children during the summer, if Angela would be ok with it. Bill shares his thought. Angela says that the change would be alright with her, if another small change can be made when it comes to the Thanksgiving holiday break, starting the following year. Bill tells Angela that he is willing; while he likes the Thanksgiving break and doesn’t really want to change the schedule they had agreed to, the change over the summer is a much bigger deal to him, and he thanks Angela for going along with his suggestion.

Next time:  Assets (especially the House) and Debts

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All blog posts are for information purposes, and should not be considered as legal advice.

  

 

 

 

 

 

 

 

 

 

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