By Annabel Murray and Stacy Fukuhara-Barclay

Published in the the October, 2009 issue of Hawaii Parent Magazine

We have all heard about divorcing or separating couples locked in constant litigation over the custody of their children. Money is no object in their quest for victory, vindication, and revenge. They are willing “to take it to the Supreme Court if necessary,” and tearfully sob to anyone who will listen, “I’m doing this for my children.”

Yet all their children want is for their parents to stop fighting

We believe that most divorcing and separating couples want to act in their children’s best interest. Sadly, they often find themselves navigating through the confusing adversarial legal process. Their fear is that one “wrong move” could cost them their relationship with their child. To protect themselves, they hire the “best” attorney they can afford, “ask for the moon,” and support their request for full custody with strongly worded descriptions about the other parent’s mental health, parenting abilities, and morals. The other parent does the same, and very quickly, the anger and conflict escalate.

After working in the Family Court for a combined total of more than twenty-five years as child advocates, custody evaluators, mediators and litigators, we’ve seen all too often the devastating and long-lasting effects that litigation has on children. We’ve wondered, “How would the children have fared if their parents had tried alternatives to litigation… alternatives that yield much more positive outcomes for children and have the added benefit of being considerably less expensive and time-consuming?”

In 2006, after many years of “talking about it,” we opened the Children’s Law Center, LLLC, a law firm dedicated to child-centered and sustainable custody solutions. We work with divorcing and separating parents to provide on-going support from a “best interest of the child” perspective. We work with both parents, not only to create a child centered co-parenting plan, but to facilitate the implementation of the plan. Most importantly, we provide on-going support to insure the plan is working for each member of their newly structured family by helping to fine-tune the co-parenting arrangements over time.

Divorce is the Loss of a Dream

It’s easy to understand why divorce litigation is so emotionally, financially, and psychologically draining. Divorce is perceived as the loss of a dream, the dream of “forever.” The feelings associated with the loss: anger, confusion, sadness and fear, are felt by every member of the family. Not only by the husband and wife whose lives have taken a hard turn off of the path that seemed so stable and clear on the day they married, but by the children, who have lived with the easy expectation that they would be raised by both parents, live in one home, and be forever part of a culturally well-defined family.

If the loss of the expectation of “forever” is hard for parents, it can be impossible for children in the midst of their parents’ divorce to accept and understand that loss. Our goal is to help parents help their children through the critical initial stages of divorce. We help parents establish a co-parenting plan that allows their children to adjust by replacing the loss with a new understanding and acceptance of their family’s future. We support parents in understanding that through their positive words, decisions and behaviors, they will help their children accept that their family, though different, is still Family.

It is Hard to Focus on the Kids When Losing a Dream

Very few people aspire to constant conflict during their divorce. Yet even the most well meaning, mentally strong divorcing parents will find themselves hurting and lost, mired in the conflict of their divorce with no understanding of what happened, much less how to make good long-term decisions for their children. The legal issues surrounding divorce can be overwhelming, not leaving time or opportunity for grieving the past or focusing on the future.

In addition to the emotional turmoil and adjusting to a new living situation, newly separated parents are thrown into a system that demands they understand the difference between legal and physical custody. They are expected to have opinions about co-parenting schedules that work for children of different ages, genders and developmental needs. The options are confusing. What is the best schedule: A four/three, week on/week off, primary residence with Mom, with Dad? What about parents who want to relocate to another state, how does that work? What about “Nesting”, allowing the children to remain in the family home while the parents move in and out? Some ideas sound good, but do they really make sense? How will the children adjust?

Parents wonder how decisions will be made regarding issues like education, religion and sports. They could not agree during their marriage, how can they be expected to agree after their divorce? Parents are unsure about the children’s adjustment: do the children need counseling or are they coping? What is the best thing to do? Is it normal for a ten year old to be having bad dreams? Is it normal that the eldest is losing interest in school? The questions outweigh and outpace the answers and often, it is those unanswered questions that become the focus of blame and litigation.

You Can Transform Your Loss into a New Beginning

We believe that hurting parents can move through their feelings of loss and anger with the right support in place, by consistently focusing on mediation, cooperation, integrity, reason, trust and ultimately, healing. Each of these words infers that a decision has been made; the decision to heal and move forward, the decision to not fight, the decision to respond to the painful event of divorce in a peaceful and child-centered way that focuses on the future. Ultimately, it’s about parents moving themselves and their children forward to a different but equally hopeful future.

Choose Sustainable Child-Centered Solutions

During the difficult time of separation and divorce, it is important that parents focus on sustainable solutions that take into consideration the current and the evolving needs of each family member. For instance, our clients G and J had three children, ages 8, 9 and 15. The children’s schools were within walking distance of Dad’s home, and the 15 year-old was involved in many extra-curricular activities, some that went late into the evening. Mom lived about 15 miles from the children’s schools, and while the parties wanted to work out a joint custody arrangement, it wasn’t possible for Mom to leave the younger children home while he drove back to the high school in the evenings to pick up her eldest daughter. Mom wasn’t sure if all of the extra-curricular activities were necessary, and was frustrated at how they were impacting her time with all three children.

We met with the 15 year-old who said she felt caught in the middle. She wanted to spend time her Mom, but her school and her extra-curricular activities were very important to her. After discussing their daughter’s perceptions with both parents, they came to understand that her routine gave her confidence and stability. We mediated a joint custody arrangement that allowed their daughter spend most week-nights at Dad’s home and more of her weekend and vacation time with her Mom, insuring also that she would spend lots of time with her younger siblings.

The Children’s Law Center works with families in transition anywhere from one month to one year. We’ll often make referrals to positive, forward-thinking counselors and educators who help family members through the emotional adjustments of their divorce. We are accessible and available to the families we work with, understanding that sometimes the most pressing questions need to be answered as soon as possible, and are not able to wait for an hour-long appointment at some future date. We work with the understanding that families need legal support and structure during this transition, and that even the best co-parenting plans may need adjusting over time.

No matter how well meaning, the Family Court process was not established to consider and help parents to address the evolving needs of growing children, but to look at the family, and the children, in the particular moment of litigation, at only a “snap-shot” of the life of a family. Consider the “snap-shots” of the lives of children; the changing faces as they grow, their personalities and interests reflected in photos that evidence the radical changes that take place after only a few months of experience and growth. The two-year old girl wearing a pink tutu and holding a Barbie, at five-years old holds a soccer ball and refuses to wear a dress! The nine year-old boy who insists he’ll be a firefighter when he grows up, pictured at twelve in swim fins, proudly holding his mask and snorkel, absolutely sure he’ll be an oceanographer.

No One Wins in Litigation

Litigation ends with a final decision from a Judge, and rightfully so. This final decision is rarely satisfactory to either parent, and if a parent feels as though they’ve won, they will quickly realize that co-parenting to any degree with the “losing” parent will turn that winning feeling into an empty victory. “Losers” have a tendency to want a re-match, and “winners” have a desire to hold on to their advantage. The consequence is that Family Court is inundated with “post-decree” litigation, with each parent providing the court with one new family “snap-shot” after another, until their children either turns 18 or the money to pay for attorneys is gone.

Litigation is about gaining a strategic advantage, positioning oneself to take advantage of the mistakes made by their opponent, and it is expensive and often, very, very ugly. The sad victory of vanquishing a “hated” enemy who was once a beloved spouse has sustained very few parents through the years of animosity they face after litigation.

One Day, Your Kids Will Thank You

Divorce or separation of parents who thought they would be together forever is the loss of an expectation, a dream, the dream of “forever.” It doesn’t have to be seen this way. Divorce is sometimes unavoidable, but the story of the divorce does not have to be one of tragedy and despair, the story of a “broken” home. Instead, it can be a story of transition, of changing course, of readjustment and ultimately, of happy children who look back on the time of the divorce and say to their parents, “thank you for working so hard to make my life happy and stable.” Therein lies the dream of forever.