When I became the Marin County family law judge this year, I expected to rule on child custody issues, disagreements about visitation, and disputes involving payment of child support. What I didn’t expect to rule on were fights between parents over whether their child should play soccer or lacrosse; study piano or violin; receive orthodontic treatment with Dr. Gonzalez in San Rafael or Dr. Falkow in Mill Valley; be bat mitzvah’d at the temple or confirmed in the church.
When these issues come before me, I often say to the parents, “I can see each of you has given a lot of thought to your proposal. Dad wants Amanda to play soccer because he was a college soccer player and believes Amanda could benefit from his experience. Mom wants Amanda to play lacrosse because Amanda would have more field time and could play on the same team as her best friend. Both proposals are perfectly reasonable, and I’m sure either would work out beautifully for your daughter. But what won’t work out for Amanda is your fighting. Fighting does not help her. It hurts her.”
At around this point in the conversation, Mom tears up and Dad hangs his head. Both of them love their daughter deeply. They want nothing more than for her to be happy. They love her so much that they have spent thousands of dollars in legal fees – and untold costs in heartache and stress – to come to court and fight for what they believe is her “best interest.” At the same time, the parents are aware of how harmful their conflict is to their daughter.
“It’s killing her,” Mom sobs. “As soon as this motion was filed, she started getting stomachaches again. She calls me from school three times a week, begging me to take her home early.”
“She’s a very smart girl,” Dad observes. “Even though her mom and I never say anything bad about each other, she knows we don’t get along. I hear her sometimes at night, praying that her mom and I will get back together. It’s rough on all of us, especially my new wife.”
What’s going on here? How can parents who obviously love their children, who are intelligent, educated, and well-meaning, and who fully appreciate the harmful effects of parental conflict, nevertheless keep fighting over their kids, all in the name of the child’s best interests?
Part of the problem is our system. As soon as a divorce is filed, parents become adversaries. Each side is represented by a lawyer. The focus is on winning and losing. The process is protracted, expensive, and stressful. It promotes mistrust, gamesmanship, and misunderstanding. Communication is now a four-way conversation between mom and her lawyer on one side and dad and his lawyer on the other.
To make matters worse, the stakes in a divorce case are as high as they get: who will take care of the beloved children? Where will each parent live? How will each parent support him or herself and the children?
To top it off, each parent may be experiencing an emotional crisis. Feelings of sadness, loss, disappointment, anger, resentment, betrayal, fear, disbelief and confusion – to name a few – are rampant. These feelings play out in court in a distinctive way: Blame.
If Amanda isn’t doing well in school, Mom blames Dad for not helping her complete homework on his nights. If Amanda whines about coming over to Dad’s house, Dad blames Mom for fostering negative beliefs. If Amanda wants to play soccer, Mom blames Dad for sabotaging her lacrosse plans. If Amanda is late for her weekend with Dad, Dad blames Mom for interfering with his time. The blame cycle repeats endlessly until both parents are in court, asking me to decide what sport their daughter should choose, what instrument she should play, what orthodontist she should see, and so on. The painful truth, evident in any family law court, is this: When parents can’t get along, the things they can fight over are limitless.
The remarkable thing is, once these parents sit down to talk collaboratively instead of adversarially, they are able to reach agreement without great difficulty. How does this happen?
In my courtroom, we start with all of us sitting down informally, at the same table, with my acting as a neutral, keeping the parents focused on our task, steering them away from rehashing old hurts and familiar arguments. The process then goes something like this:
Psychological studies show that the measure of how a child will do after a divorce is the level of conflict between the parents. Simply put, the higher the conflict, the unhappier the child. Ten years from now, whether Amanda played soccer or lacrosse is likely to have little impact on her life. But whether Amanda grew up with positive feelings about both parents is likely to stay with her forever.
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