Divorcing Parents: Resolve Your Issues About Children

Credit/Written by: Ellen Gesmer, New York Law Journal

September 21, 2015

At the beginning of each divorce case, I speak with the attorneys to find out what is truly in dispute. If they tell me that their clients are preparing to battle over their children, I speak directly to the parties to persuade them that, for the sake of their children, they must resolve their differences. I always hold this conversation with the lawyers present, and usually in my robing room, in the hope that the parties will listen attentively and feel free to ask questions. My goal is to remind them that they are reasonable, mature people who need not let their love and concern for their children be displaced by the sadness, rage and disappointment that accompanies the divorce. Often, they listen, weep, and then engage seriously in settling.

I adapt my talk to their particular concerns. This version is pitched to a family with a teenage daughter and a younger son.

I understand that you are having difficulty coming to an agreement about your children. My first suggestion is that you avoid the word ‘custody’ completely. When people talk about custody, they start talking about losing and winning; but you don’t win or lose your children. You play with them, feed and clothe them, love and protect them.

So I want you to think about two things: a schedule for your children to spend time with each of you, and a plan for making decisions for their benefit.

There are probably at least a half dozen schedules that would be fine for your children, and that would allow them to enjoy a happy childhood, and to become well-adjusted adults with good relationships with each of you and healthy intimate relationships of their own.

Similarly, there are many possible processes for making thoughtful and timely decisions for their benefit. Any schedule and any decision making plan that you can agree on will work out fine. Frankly, whether your children spend Wednesday nights at the home of one of you or the other will not ultimately make much difference in their lives. But I can promise you that not reaching an agreement and fighting over these issues will cause your children lasting damage.

Why is that? The first reason is the cost. Rarely does a custody trial last less than a week, and lawyers typically spend two or three days preparing for every day of trial. That adds up, and the money that you would spend on a trial would be much better spent on your children. Secondly, a trial takes a lot of time. You have to use up your vacation time or take unpaid days from work, or take time away from being with your children.

Third, a trial is emotionally draining. You will be anxious for weeks before it, and miserable while it is going on. After a day on the witness stand, you’ll be too exhausted to be a good parent, and too tired to function well at work.

Fourth, if you settle this case, you could be divorced by Thanksgiving. But if you try this case, you will be married to each other until at least 2016 and probably even longer. That long period of uncertainty is damaging for your children and will prevent you from moving on to the next stage of your lives.

In addition, trials concerning children raise very intimate issues. I will listen very carefully to the testimony and arguments that your very good lawyers will present. But I will never know as much as you do about you and your children, your values and priorities, and what you each have to contribute to their lives. So you are in a much better position than I am to craft a plan that accounts for your strengths and weaknesses as parents, and your children’s wishes and dreams. To me, it’s paradoxical that my job is to decide the trial based on what’s best for your children, when at the same time I am convinced that what is best for your children is not to have a trial at all.

If you have a trial, you will be angrier at each other at the end of the trial than you have ever been. You will spend weeks before the trial telling your lawyer everything negative you can think of about the other. Then you’ll have to sit in the courtroom and listen to the person you once thought was the most wonderful person in the world saying all these awful things about you.

Your resulting hurt and anger will make it very difficult to fulfill your most important responsibility: to cooperate to raise your children together. Your children are entitled to have both of you participate in the important decisions in their lives, from happy decisions like selecting a school to difficult ones like choosing medical treatment. If you’ve gone through a trial and are furious at each other, it will be far more difficult to be civil to each other at the middle school play or to engage in a thoughtful assessment of the right course of action when your child is sick. And that’s not fair to your children.

Being a good parent after a divorce requires that you keep in mind your spouse’s best characteristics, which brought you together in the first place. With that in mind, you’ll be able to make a plan for caring for your children that allows them to benefit from those qualities, and for you to continue to be a parenting team, as I know you tried to be while your marriage was intact. In contrast, if you focus for the sake of the trial on what’s worst about your spouse, you will, inevitably, be insulting your children too, since their identities come from both of you.

If you go to trial, your children will almost certainly know about it. I may decide that I have to appoint an attorney for your children and also, or alternatively, a mental health professional to meet with all of you and provide a report.

This will be both an added expense, and more importantly, an enormous intrusion into your lives and the lives of your children.

Your children will have to spend time meeting with their lawyer, meeting with the forensic evaluator, and possibly even coming to see me. But this is not your children’s job. Your children’s job is to go to school, to play, to make friends, to listen to music, to daydream. When you force them to be involved in this process, it shows that you have abdicated your responsibility to make this important decision.

In addition, the children’s lawyer will be required to ask them what they think should happen.

That will be a terrible burden on your younger child, who still thinks that you know everything, and who certainly doesn’t want to have to choose between you. Having to make that choice may harm your teenager in a different way. Part of your teenager’s psychological task at this time is to separate from you. Having to take a position will involve her in these decisions, which may make it harder for her to separate from you.

At the end of the trial, your children may well perceive that one of you has “lost” and one of you has “won.” They may feel badly for the parent who “lost,” and they may feel compelled to try to manipulate the schedule so that they can spend more time with that parent. Or they may think that they should side with the “winner” by being dismissive of, or even cruel to, the parent whom they perceive as the “loser.” In either event, it puts them in a terrible bind.

Having a custody battle creates another risk for your teenager. She is at an age where she is facing social pressures. I know that you hope that she will turn to you for help in making these difficult decisions. From her point of view, the most important decision that you will ever make is what’s going to happen to her and her little brother. If you go to trial, she will know that the two of you were unable to make that decision, and that you had to turn to me, a total stranger, to make that decision. She might conclude that you’re not very good at making decisions, and that you’re not the kind of people that she can rely on when she has difficult ones to make. So she may turn to other people to help her with the tough choices in her own life. My guess is that’s not what you want to happen.

It would be best for your children if you could make a decision together about these issues, and then, together, tell the children what you have decided. They would then know that they could just follow the plan and love you both, without feeling that they have to favor one of you over the other.

I am going to put this case off a few weeks to give you a chance to be the good parents I know you want to be, and to give you time to come up with a solution yourselves. I am available to help you in any way that you and your lawyers would find helpful.

Try to put aside your disappointment in each other and focus on your love for your children. Think honestly about your own weaknesses and your spouse’s strengths. I suspect that each of you knows that there are some things that the other one does better than you. The greatest gift that you can give your children is a shared plan that allows them to have the benefit of the wisdom and experience, and the time and the love, that each of you can offer.

Ellen Gesmer is a Supreme Court justice in New York.