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Getting A Divorce? Why You Should Not Just Fight It Out

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There are times when a custody fight appears inevitable. While you, of
course, are willing to be reasonable, many parents believe that the other
parent either cannot or will not return the favor, and that a court fight is
inevitable. Many have traveled the adversarial road, and probably for many
of the same reasons. Constant fighting, arguing and blaming in a marriage or
similarly committed relationship generally leads to more of the same while
dissolving it. Unfortunately, the consequences of continuing this behavior
can be dramatic, including protracted litigation, escalating costs, a
dramatically reduced standard of living and significant damage to your
children’s emotional well-being. Jim Melamed, a family law mediator in
Oregon, calls these results “the parade of the horribles” – and
appropriately so!

Custody Litigation is Unpredictable

While asking a court to solve resolve differences over custody and
visitation is, unfortunately, the traditional approach, it is also highly
unpredictable. If you doubt this, ask your attorney to guarantee, in
writing, what will happen if you choose to litigate your custody and
visitation issues. Part of this unpredictability stems from the fact that
most parents believe their cause to be righteous. This means, of course,
that at least half of all litigants are unpleasantly surprised by the
judge’s decision. More importantly, litigation is unpredictable because
judges are human beings who naturally differ in their approach to the kinds
of problems that custody and visitation disputes present. In almost every
case, some factors favor one parent and others the other parent. This means
that even when two fairly “good” parents face off in court, both are likely
to walk away dissatisfied.

Custody Litigation Is Usually Costly

If you choose to pursue litigation, the next hurdle will be figuring out
how to pay for your court battle. If you decide to represent yourself, you
will save on attorney’s fees, although the costs and time associated with
filing, (which include doing the legal research as well as preparing and
serving your court papers), can be significant, and the results you achieve
may be less than you might have expected if you had been represented by an
expert. Whether or not you hire an attorney, you may find yourself having to
pay for testimony from a counselor or therapist prior to submitting any
final report, or a custody evaluation. In addition, you will probably find
it necessary to arrange for testimony from friends, relatives, school
teachers, clergy members and neighbors.

Funding a child custody battle can be especially difficult in light of the
fact that after separation or divorce, the income you once shared must now
be used to maintain two separate residences. In addition to separate rent or
mortgage payments, telephone service, food and other incidentals, you will
be forced to duplicate the furniture, clothes and toys that don’t travel
with the children, and meet the costs associated with the distance between
your homes (such as travel and telephone). Many who separate or divorce are
stunned by how quickly their money disappears!

Custody Litigation Damages the Children Regardless of the Result

As important as money is, the economic consequences of fighting in court
can be dwarfed by the impact it will have on your children. Mental health
professionals, the court system, attorneys, mediators and custody evaluators
all agree on one thing—on-going parental conflict is generally the single
most damaging stressor for children.

When conflict is obvious and occurs over extended periods of time, children
feel torn between loving both parents, hoping someone will magically restore
the marriage, and wishing that they could be anywhere but where the battle
is raging! You may be surprised to note that this is true even when parents
have most of their arguments out of their children’s presence. Because
children have spent all of their lives living with and observing their
parents, and because children rely on their parents to provide the basic
securities of life, they develop an uncanny ability to “read” them.
Children are exquisitely sensitive to each parent’s reactions when that
parent hears the other parent’s name, receives a call from the other parent,
receives court papers from the other parent or calls the attorney.

Avoid Litigating Your Custody Dispute if at all Possible

Hopefully, after reading this, you’re convinced that litigation should most
definitely be a last resort. Ideally, you should start by researching these
issues so that you will have the tools and information you need to resolve
your differences with the other parent in as friendly a way as possible and
avoid litigation. Next, find out which professionals might be available to
support you through the process, (such as attorneys, mediators, mental
health professionals, paralegals or others), and develop a plan for
resolving your differences which allows both you and the other parent to
retain control over the decisions which result.

Parenting separately is challenging, but it is a job worth doing well. By
making the commitment to put your children’s interests first, and by taking
the time to educate yourself about your options, you, your children and the
other parent may find that you can develop a parenting agreement that each
of you feels is essentially fair.


Mimi E. Lyster

Mimi Lyster has been active in dispute resolution, facilitated dialogue and decision-making, and strategic planning since 1981. She brings her experience as a mediator, trainer, facilitator, planner, and statewide court policy analyst to her role as administrator of the Court Planning and Litigant Services department of the Contra Costa Superior… MORE >

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