In order to understand the power of collaborative divorce practice as it touches the children of a ruptured family, a few words about the experience of these kids would be helpful.
A few years ago, I had lunch with a friend and asked her about her 13-year-old son’s relationship with his dad. She had spoken for a long time about her boy’s estrangement from his dad since the divorce and I was wondering if there had been any improvement. “No,” she lamented. “I tell Adam to spend time with his father and that his father loves him and wants to be with him, but he just won’t go.” After a pause she added, “Not that anyone would want to be with that son-of-a-bitch!”
Children know. They don’t have to hear one word spoken in anger between divorcing or divorced partners. If there is anger, resentment, bitterness, they know. We communicate to our children through the icy emotional blast that fills the room when the ex’s name is mentioned or by the silence when the child speaks excitedly about time with the other parent. They know when one parent says, “You can always call me if you need to when you’re at your dad’s.” Children’s antennae are out and acutely searching the emotional environment to determine where safety and danger lie.
As adults, we have long forgotten the mystical power with which we imbue our parents and our personal world. Long buried in our memory banks are the days when we ruled our world (literally) by the magic of having a toy magically reappear on our highchair table after we make it disappear by throwing it on the floor. We also lose connection with that time in our lives when we loved and needed each parent with such aching intensity because basic survival needs were bound up in these relationships (as with no other).
Experts on children and divorce repeatedly state that children love both parents. There are few violations that will erase that love. Even if a child is primarily cared for by his or her mother, the father is also an object of deep longing and love. Judith Wallerstein and Joan Kelly have written quite movingly about the dark sense of loss for little boys when their fathers leave the home.
Many divorcing parents ask, “What is the best parenting arrangement for our kids — alternate weekends for dad; week on/week off; ‘bird-nesting,’ where kids stay in the home and mom and dad alternate weeks in the home; 3-4/2-5/4-3/5-2 residential arrangements?” The answer is that every residential arrangement is idiosyncratic to the world of that particular family and the needs and resiliency of the children.
There is one absolute, however, upon which all observers and researchers concur: Children’s recovery from their parents’ divorce and their ability to grow into well-functioning, satisfied adults depends in large part on the degree to which they are protected from parental conflict. Most people feel that if they are not yelling at each other in front of the kids or overcoming the temptation to bad mouth each other within earshot of the young ones, they have fulfilled their duty. This is simply not so.
The degree to which parents can proceed through a divorce process that lessens their anger and bitterness is the degree that their children will be shielded from their anger and bitterness ... because kids know.
This reality puts conventionally trained family lawyers in a bit of a bind. They feel ethically bound to represent the interests of their client. Aggressively pursuing their client’s interests — making sure Mom gets that last available dollar of maintenance for the most possible months or making sure Dad gets every possible minute of residential time with his kids that he demands — is the attorney’s duty. Yet surely, in many cases, our client’s interests and goals are outright harmful to the other party and can have an effect on the children.
Our training leads us to the conclusion that we cannot concern ourselves with anybody else’s interests, so long as what our client desires is reasonable (in our advocate’s eyes) and we go about securing their interests in a professional and ethical fashion. However, this view is fearfully myopic. The interests of other people are vitally intertwined with the interests of our clients. This observation was cogently stated in the ethical code of the American Academy of Matrimonial Lawyers, The Bounds of Advocacy, in which it is said in the Preamble:
The breakup of a marriage will be felt not only by the couple but also by other family members and often by friends and others with personal or business relationships with the parties. ... A 1988 survey of Academy Fellows indicated that the harm done to children in an acrimonious family dispute was seen as the most significant problem for which there is insufficient guidance in existing ethical codes.
The divorce that resolves financial and other legal issues, without regard to whether the process itself wounds and batters the parties involved, plants the seeds that will surely sprout over time to bitterness, resentment, vengeful feelings and beliefs in one’s victimization at the hands of the other. These are all in the aftermath of conventional law, well practiced. Our client’s interests have been ardently promoted. Yet how will those extra dollars, extra hours or other advantages feel to the parents whose children grow up in a cold war between the two people they love most deeply and feel strong loyalty toward — when those children begin to struggle in school, or turn to alcohol or substances to quell their own anxiety, or engage in early sexual acting out in their quest for security?
Collaborative law is an approach to conflict resolution that has spread like its own great awakening among committed, experienced family law practitioners throughout the country. It is rightfully touted as a means to assist divorcing parties in uncoupling without litigation and its attendant rancor. To be sure, collaborative practice, well executed, is a boon to both the divorcing parties and their attorneys who have a broader view of their client’s interests. Yet, perhaps of greatest importance, it is the most child-centered approach to legal uncoupling that has yet been devised.
First, and following obviously from the discussion above, collaborative professionals seek to assist adults progressing through a devilishly difficult personal odyssey in a manner that will protect each person’s dignity and personal integrity. It starts from an assumption of people’s good faith and assumes that people act out of pain and fear rather than malice. When the emotions overwhelm the people, a mental-health professional is employed as a coach to lower the anxiety and allow the parties to make decisions with their brains rather than their viscera. (It is a practice that actually results in thank you cards to the practitioners after the conclusion of negotiation.)
Without question, the attention by each lawyer to the dignity and good will (and fears) of both parties, creates an environment that lowers stress, anger and defensiveness, which are so damaging to the psyches and ultimate recovery of divorcing people. The concomitant benefit is that people proceed with a higher regard for one another and a sense of appreciation that each was mindful of the concerns of the other in ways that conventional legal practice simply does not acknowledge or permit ... and the children know. Just as kids who are caught in the cold war of parents’ unresolved resentment know, those who feel free to love each parent — and share that love with the other — survive and even thrive through their parents’ divorce.
One additional element to the collaborative process that makes it so child-centered is the frequent involvement of a mental-health professional who is expert in working with children as a “child specialist.” This person is not performing a parenting evaluation — there are no judgments or conclusions from which an anxious parent need protect him/herself. This person performs a purely educative and supportive function.
This professional has often been termed the “voice of the child,” as kids experience their parents’ divorce like one of those long road trips where you’re thrown in the back seat and the grownups in the front make all the decisions about where you go and how you get there. Adults, whose parents divorced, overwhelmingly complain that the parents figured out their “custody/visitation” without ever talking to them.
The parenting specialist learns what these children’s concerns are regarding a residential schedule, as well as how the parents are recognizing and responding to their needs ... or not. Advice and counsel are given about a wide array of concerns, from how and when to tell the children about the divorce to the manner of response to children’s symptoms of distress, without calling out the heavy artillery of litigation and parenting evaluators.
Divorce is a searing emotional life passage. It has been said that this is so in spades for children. Collaborative practice, as it has evolved into maturity in Washington, addresses children’s needs in a manner that is frankly inconceivable to attorneys still most comfortable with the conventional litigation model of dispute resolution. These lawyers are understandably leery of the risks attendant to a process that seems to rely on parties’ good faith to succeed.
To be sure, these risks can never be eliminated (despite the fact that well more than 95% of cases that commence in the collaborative framework conclude there as well). Yet for a growing number of practitioners, the benefits of this process, particularly for the children of divorce, so far exceed the risks that our commitment to this model is complete, and our satisfactions with the practice of law are immense and growing with each passing month and each successful resolution.
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Joe Shaub is a family lawyer and mediator. He is also a licensed marriage and family therapist with offices in Seattle and Bellevue. He has conducted law firm workshops and retreats for the past 12 years. He can be reached at 206-587-0417 or through his Web site: shaublaw.com
