When a couple is going through a divorce it’s normally a tough process. It gets really tough when children are involved.
“When it comes to the children, it is especially important to know what the client is trying to achieve,” said Alan Fishbein, who has been practicing law in Ellicott City, Maryland for nearly 40 years.
“It is so frustrating to watch a divorce unfold where parents will use children as pawns in the war they are fighting with each other. That’s not very pleasant,” Fishbein added.
Fishbein approaches custody in different ways depending on the client and his or her goals. The court’s goal is to put the child in the best environment possible, which often means joint custody so the child can actively remain in the lives of both parents.
With joint legal custody, both parents are engaged in making decisions for the child. Those decisions may be heavy, such as selecting which religion to practice, or light, such as what activities will the child engage in after school.
There are times when Fishbein tells his clients that joint custody is not the answer. In the case where one parent cannot be involved with the child, for example, when a parent works odd or inconsistent hours and days for their job. Unless the parent is willing to change their job and lifestyle, joint custody is not in the child’s best interest.
In this case, Fishbein says, “It’s the attorney’s job to tell his client joint custody is not the right goal.”
There are some instances where joint custody is clearly not in the child’s best interest, like in the case where there is a history of domestic violence or abuse. Other instances, such as when a parent seems indifferent or un-engaged with the child’s life, are things attorneys look for when advising clients.
The bottom line is that the courts will decide on what is in the best interest of the child. After that, it’s up to the parents to help the child navigate a new world.
An article from the National Association of School Psychology by John E. Desrochers, PhD, ABPP, provides some good advice on how parents can support children during and after divorce. It outlines the following key risks and protections to look out for in divorcing families:
- Conflict between parents
- Turning children into “little adults”
- Parenting style
- The role of schools and adults outside the family
- Change in the family’s standard of living
- A child’s own strengths and weaknesses
- Young children: Specific risks
- Adolescents: Specific risks
- Impact of child custody
The Research Consensus Statement on Co-Parenting After Divorce (July 28, 2014) created by International Council on Shared Parenting (ICSP), provides specific direction for co-parenting after divorce.
- There is a consensus that neither the discretionary best interests of the child standard nor sole custody or primary residence orders are serving the needs of children and families of divorce. There is a consensus that shared parenting is a viable post-divorce parenting arrangement that is optimal to child development and well-being, including for children of high conflict parents. The amount of shared parenting time necessary to achieve child well-being and positive outcomes is a minimum of one-third time with each parent, with additional benefits accruing up to and including equal (50-50) parenting time, including both weekday (routine) and weekend (leisure) time.
- There is consensus that “shared parenting” be defined as encompassing both shared parental authority (decision-making) and shared parental responsibility for the day-to-day upbringing and welfare of children, between fathers and mothers, in keeping with children’s age and stage of development. Thus “shared parenting” is defined as, “the assumption of shared responsibilities and presumption of shared rights in regard to the parenting of children by fathers and mothers who are living together and apart.”
- There is a consensus that national family law should at least include the possibility to give shared parenting orders, even if one parent opposes it. There is a consensus that shared parenting is in line with constitutional rights in many countries and with international human rights, namely the right of children to be raised by both of their parents.
- There is a consensus that the following principles should guide the legal determination of parenting after divorce: (1) shared parenting as an optimal arrangement for the majority of children of divorce, and in their best interests. (2) parental autonomy and self-determination. (3) limitation of judicial discretion in regard to the best interests of children.
- There is a consensus that the above apply to the majority of children and families, including high conflict families, but not to situations of substantiated family violence and child abuse. There is a consensus that the priority for further research on shared parenting should focus on the intersection of child custody and family violence, including child maltreatment in all its forms, including parental alienation.
- There is a consensus that an accessible network of family relationship centres that offer family mediation and other relevant support services are critical in the establishment of a legal presumption of shared parenting, and vital to the success of shared parenting arrangements.
“When the people who are divorcing can put aside the conflict and remember the children, it has a great effect,” Fishbein advised. “As attorneys, we find ourselves often reminding our clients of that fact.”
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