When a family is separating due to divorce, one of the hardest realities to face is that children can only be in one place at a time. Divorce does, however, offer opportunities for a renewed commitment to the parent-child relationship. It is worth the effort to handle this well because parent-child relationships transcend divorce. For parents, the relationships with their children help make life meaningful despite divorce. For children, the divorce experience helps them learn about relationships.
The first decision: where do you want to go?
In a collaborative law process, we begin by clarifying each parent’s big-picture objectives concerning the children. We ask questions such as: What are your hopes for the children during and after the divorce? Do you want to protect the children from adverse consequences of the divorce as much as possible? Do you hope to maintain stability for the children as your circumstances permit? Do you want to protect the children’s financial security? Do you hope to maintain or improve your own relationship with the children? Is it important that your children receive some positive messages about coping with life’s difficulties that will help their self-esteem and future relationships?
In Collaborative Practice, we also ask parents additional questions: What are your fears or concerns about the children? Are you worried that your spouse will stop providing for the children? Do you fear that your spouse will interfere with your access to the children or turn the children against you?
To resolve these issues, we must know what the parents’ goals are. Once we understand their goals, then we can develop options and measure each proposed option according to how it meets the prioritized goal. We only have a good fit (i.e., a good overall settlement) if a set of options meets both parents’ greater goals to the extent possible under the circumstances.
How do these conversations take place?
In the collaborative process, the conversation begins between the parent and his or her own collaborative attorney. The parent’s hopes and concerns are discussed. We also discuss the opportunity for focused input from a neutral child development expert. The neutral Child Specialist can help the parents function more effectively together to meet children’s needs during and after divorce.
What does the Child Specialist do?
The Child Specialist in collaborative law is a neutral consultant working only for settlement. He or she is a mental health professional with expertise in children’s developmental needs who meets with the parents. The conversation continues about the parents’ hopes and any concerns they have about the children’s adjustment to the changing family circumstances.
The Child Specialist then meets alone with the children to talk about the changes and gauge the children’s responses and needs. Finally, the Child Specialist meets again with the parents and their professional helpers to discuss insights and suggestions. The Child Specialist also helps the parents work out a parenting plan that best meets their goals and takes into account the children’s perspective. The result is a plan that is durable and works well for all members of the family.
It is then the job of the collaborative attorneys to put the parenting plan into legal form and submit it to the court so it can become part of the legal settlement.
How is this approach different from court-based divorce or mediation?
The Custody Evaluation is the tool of choice in a court-based divorce process when custody is disputed. The resulting recommendation is not focused on helping the parents, but rather on helping the judge make a difficult decision. The custody evaluator is answering this question: What parenting plan should I order for this family, given that the parents seem unable to come to a cooperative agreement? A Child Custody Evaluation is inherently adversarial as each parent must advocate for their own fitness as a parent and for the superiority of their proposed custody plan.
A Custody Evaluation can cost from $3,000 to over $30,000. It can take from three months to a year to complete. Even then, the custody evaluator’s final opinion can be disputed by the losing parent, meaning that a contested court hearing will be necessary. Custody orders are always modifiable until the child reaches the age of majority, which varies by state.
In mediation, the parents negotiate directly with each other for a custody plan. The mediator helps to resolve disputes. If the mediator does not have child development expertise, he or she may suggest bringing in an appropriate expert to help the parents focus on a plan that is best for their children’s needs, rather than focusing on parental rights or preferences.
Donna Beck Weaver is a Certified Specialist in Family Law, State Bar of California Board of Legal Specialization with 30 years of experience. Ms. Weaver is the co-founder of the Los Angeles Collaborative Family Law Association (LACFLA), a Board member of the International Academy of Collaborative Practitioners (IACP) and a fellow of the American Academy of Matrimonial Lawyers (AAML). Ms. Weaver was named a Super-Lawyer of Southern California for the past two years and her practice is located in Santa Monica, California.
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