Illinois Divorce Lawyer Blog

Helping Children Resist the Pressure to Choose One Parent Over the Other

By Amy J.L. Baker, Ph.D. in Caught Between Parents, Psychology Today

Some children of divorce naturally feel caught between their parents as they adjust to two homes, two sets of rules, possibly two neighborhoods, and two families. But what children really want and need is to stay out of their parents' conflicts and to maintain healthy and strong relationships with both parents (unless, of course, one parent is abusive to the child).

Unfortunately, some parents take advantage of children's difficulty navigating between two families and dealing with the complexity of parental divorce by creating in their children an expectation that they choose sides. These parents employ a range of strategies, known as parental alienation, in order to foster the child's rejection of the other parent.

Parental alienation strategies can take many forms but usually includes badmouthing the other parent, limiting contact between the child and that parent, and interfering with communication between the child and the parent.

Divorcing parents need to become educated about the primary parental alienation strategies so that they can effectively employ responses that challenge the child's tendency to take sides while maintaining the high road as a parent (see Baker & Fine, 2008 for more details).

Parents concerned about parental alienation also need to help their children develop 4 capacities that will help them resist the pressure to choose sides. These are:

Critical Thinking Skills
When children think critically they are aware of their thoughts, where they came from and are able to examine the reality of them and change them accordingly. This skill will help the child question his or her ideas about each parent (i.e., one is all good, one is all bad; one is always right, one is always wrong). If a child is using critical thinking skills it is not likely that he or she can be programmed or brainwashed into rejecting one parent to please the other.

Considering Options
When placed in a pressured situation in which a child feels compelled to do as one parent asks (i.e., not spend time with the other parent, spy on that parent, and so forth), it is important for the child to slow down, not act right away, and consider his or her options. Doing so can prevent the child from automatically doing what the alienating parent is asking.

Listening to One's Heart
When children learn how to be true to themselves and their values it is not likely that they can be manipulated or convinced to do something that goes against their best interest (i.e., cut off one parent to please the other) or something that betrays the other parent. Children need to be encouraged to identify their core values and to be attuned to when they are going against them.

Using Coping Skills and Getting Support
Children sometimes feel that they are the only ones who are dealing with a problem and that no one can understand what they are going through. Encouraging children to talk to other people such as friends, teachers, and other caring adults can help them feel less alone and can help them benefit from the wisdom and kindness of others. Children also have more internal resources (self talk, relaxation strategies) that they can develop and rely on in times of need.

The American Bar Association's Section of Family Law adopted standards of civility for Family (Divorce and Custody) Attorneys. The ABA recognized that civility is important in family law practice. As a litigant and client, why should lawyer civility be important to you?

In my divorce and custody practice, there is a time for negotiation, and there is a time for aggressive representation of my client's interests. Aggressive representation, however, does not suggest inflammatory or reckless litigation. In my 25 years of litigation experience, as a prosecutor and trial lawyer, the most successful approach to litigation is aggressive, focused civility. Lawyers that treat their clients with respect and care, who treat opposing lawyers with a measure of civility, and who show respect for the Court, get the best results.

Why, as a trial lawyer, act with civility? It saves you, the client, time and money, lowers the stress of the case, and gets the best results. If you hire an angry, reckless, "bulldog" lawyer for your case, you'll spend more, have more anguish and stress, and your results will likely be far lower. Judges typically don't respect the generalist "bulldog" lawyers.

So, what are the ABA's recommendations for civility in divorce practice?:

1. Treat the the client with respect.

2. Try to keep the client on an even emotional keel and
avoid characterizing the actions of the other party,
opposing lawyers, and judicial officials in emotional
terms.

3. Be aware of counseling resources and be prepared
to refer the client to counseling where appropriate.

4. Where a client has an exaggerated or unrealistic
view of his or her options in any given situation,
explain matters as carefully as possible in order to
assist the client to realistically assess the situation.

5. Respond promptly to client requests for advice or
information.

6. Consider the availability and appropriateness of
forms of alternate dispute resolution.

7. Where a client wishes to pursue a claim or motion for
purely hostile or vindictive purposes, explain to the
client the reasons why the client should not do so.

8. Do not assist a client in pursuing a claim for primary
custody or visitation where the purpose of the claim
is to obtain bargaining leverage in order to achieve a
purely economic objective.

9. Avoid any communication to client about the judge,
the other lawyer, or the other party that will contribute
to disrespect for the legal process.

10. Encourage clients to comply with all court orders.

Says the ABA: "These Standards address the responsibility of the family
lawyer to be civil to clients, opposing counsel, and the
Court. Civility is an important obligation of a lawyer."

My practice has seen an increase in the number of interstate custody disputes, in part due to the increased mobility of families as well as due to age old issues of parents wishing to return to their "home state" with their children once the marriage begins to break down. The Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”), a national uniform act, was enacted in Illinois on July 8, 2003, and took effect on January 1, 2004.1 It was incorporated into Illinois law to end custody jurisdictional disputes between states, to promote cooperation between states in determining custody issues, and to enhance the ability of states to enforce custody orders expeditiously.

I receive calls frequently from parents who have either fled the state of Illinois to avoid domestic violence and a bad marriage, or from parents left behind in Illinois once a divorce commences and the opposing spouse wishes to leave Illinois and run "home" with the children to his or her family out of state.

Illinois law disfavors parents leaving the state and taking the children with them. Illinois has long had a tradition of requiring Illinois parents in divorce to stay in Illinois and raise the children here with both parents. Our removal statute creates factors that determine whether a party may lawfully "remove" the child or children from Illinois to reside permanantly in another state.

The UCCJEA as part of Illinois created a powerful tool to help the states determine whether Illinois or another state should decide an interstate custody dispute. What has been interesting to me in my custody practice has been the observation that even though the UCCJEA in incorporated into most states' law, few lawyers and a minority number of judges seem to understand how the UCCJEA works and how it is intended to guide interstate custody decisions.

THe UCCJEA is a powerful tool in an Illinois lawyer's arsenal. If your spouse has fled the state with your children, or if you have left the state lawfully to avoid domestic violence, please contact my office for a thourough consultation on interstate custody and the UCCJEA.

Excerpted from the Huffington Post from an Article by HP writer Nancy Fagan (The Divorce Reporter) on attachments that continue after divorce. http://www.huffingtonpost.com/nancy-fagan/cut-the-marital-cord-alre_b_1018650.html

Michael Roe's comments immediately below:

Nancy, a very interestin­g and legally sound article. Illinois has been a part of a trend toward requiring judges to do all that they can to terminate the connection­s with former spouses, once they are divorced. However, as there is also an expressed trend toward joint and shared parenting and permanent maintenanc­e (also known as alimony), in reality, the cord does not get completely severed in divorce. In Illinois, divorced parties of long term marriages are bound to each other through their duty to co-parent and through years of maintenanc­e and support payments.

Having said the above, your excellent article highlights and important aspect and boundary issue. Divorce is also an emotional and psychologi­cal transition­. Individual­s that maintain codependen­t ties, or, as you note in your example, maintain a sexual relationsh­ip even while "moving on" with others, cultivate a very unhealthy post decree environmen­t. Couples that use their children as a platform for retributio­n in the years after divorce also contribute to the unhealthy developmen­t of their children.

So, as states like Illinois trend toward keeping certain attachment­s between the parties in place, your article does a very good job of offering the idea that the severing of the connection must start as an emotional and psychologi­cal one. Your recomendat­ion for counseling and therapy is very appropriat­e.

“Hi Mr. Roe,

Thank you for the nice things you wrote. One of the biggest challenges in writing to a large audience is hoping people are able to open their minds to the message being conveyed. Sometimes people have hurt and pain (past &/or present) that alters their perspectiv­e which causes them to react negatively to what they read. I'm sure you encounter this with the population you write for in your blog. If you have any suggestion­s on how to lessen a reader's reactivity about divorce issues, I'd love to know.

Take care,

Nancy Fagan, The Divorce Reporter
www.TheDiv­­­­orceHel­p­C­l­inic­.c­om”

Divorce is a very difficult life transition. Divorce is known to be one the highest stress events of a person's life, especially when the divorce was unexpected or involves dramatic changes to the children in the marriage.

My job as a divorce and custody attorney is to help my clients navigate the divorce process as successfully as possible. Divorce is a difficult process, but it should not be a "war." Wars, as we all know, end with casualties on both sides, cost a lot of money, and leave wounds that do not heal.

What basic advice can I give to help divorcing parties manage the stresses of divorce?

1. Understand that your life is changing, not ending. 99.9 percent of divorcing parents are adapting to life after divorce within a year of the divorce.
2. Keep your attorney informed of job changes, tax problems, relocations, and unplanned new events, such as a girlfriend or boyfriend.
3. Provide the financial documents and responses to discovery as promptly as you can. Upon hiring the firm, please start to gather tax return copies for recent years and complete the "Comprehensive Financial Statement." If a guardian ad litem or custody evaluator is appointed to your custody case, be sure to contact the GAL or evaluator as soon as possible.
4. Never involve the minor children in the details of the divorce, and don't send information or support payments to your spouse through the children.
5. Keep an electronic or paper file copy of the pleadings and correspondence sent to you by the firm.
6. Obey all court orders, even if you don't feel the order is fair. If the Judge orders you to maintain health insurance for your spouse during the divorce, keep them on your plan until the judge allows you to take them off the plan, usually post-judgment. If the judge sets a parenting schedule, don't change or interfere with parenting times without the consent of the other parent.
7. Obey court orders for this reason, too: In Illinois, if a party fails to obey a court order, and the judge finds that the failure was done without "cause or justification," the judge will order the disobeying spouse to pay the other party's attorney's fees for enforcing the order. Don't willfully skip a $200 support payment, only to incur $2000.00 in attorney's fees.
7. Join a divorce support group or find an individual therapist if the stress of the divorce or the stress of life changes becomes overwhelming.
8. Don't act out in front of the judge while in court. If you don't like a judge's ruling, wait until you're in the hallway outside the presence of the court to vent. Judges have good memories, and will remember people who act out in displeasure at their rulings. In divorce, there is give and take. Judges make rulings based on the law, and the courts make an effort to be fair under the law. Not every ruling will go your way; this is the nature of divorce litigation.
9. Instead of using the process to get revenge on your spouse, use the process the find resolution where possible. Don't be the divorcing couple that fights over every piece of dishware or tool in the toolbox. If you want to fight over the Ikea lamp, concede the Ikea lamp to your spouse, and take the $250 you would spend on lawyer's fees for an hour, and go to Ikea and buy yourself a new lamp...and a chair.
10. Even if you've had a difficult day at court, go home and breathe deeply, and remember the good that you have in your life. If you have children, treasure them. If you have only yourself, treasure yourself...life will get better after divorce.

In my divorce and custody practice, I have always been an advocate for shared parenting plans for the right set of parents. When both Father and Mother are good and loving parents, there is no reason to cause one parent (typicaly Dad) to suffer the stigma of having "visitation" with his own children. The more opportunities that each parent has to parent their children allows the children to grow into better adolescent lives and behavior patterns. Children of divorce that experience two loving parents in their lives tend to do best long term.

A recent study from Denmark supports shared parenting:

The Copenhagen Post: "While equal custody arrangements became increasingly common in Denmark over the past decade, in 2007 they became the rule of law when a unanimous parliament passed the Parental Responsibility Act and made equally custody the default.

As a result, unless the parents agree to a different custody arrangement, the state favours and enforces equal custody, known as the 7/7 solution, which sees children spend alternating seven-day periods with each parent.

From the beginning it was controversial; parents and experts questioned whether having two homes was healthy for kids. Four years later the Danish National Centre for Social Research (SFI) has released the first report of its kind on how the arrangement is affecting the children, and the results are mixed.

“It’s more difficult for children to have two homes than one. But that’s not tantamount to saying its distressing for all children,” Mai Heide Ottosen, an SFI senior researcher and the study's author, told Politiken newspaper. “If the parents are able to create continuity between the two different home situations, it can work well.”

By continuity, Ottosen means not only that they must agree to basic parenting rules, but that they should also live close to one another and be willing to switch days and co-ordinate pick-ups and drop-offs. In short, they should be able to co-operate with one another as well as, or better than, married couples do.

SFI determined that equal custody arrangements are easier for small children to tolerate than for teenagers who want more control over their clothes, rooms, schedules, and proximity to friends.

Not surprisingly, SFI’s study found that 7/7 custody sharing works best when parents freely choose it and plan it together. Such agreement and planning is predicated on being able to co-operate and get along. However, not all divorced couples can do that."

Many Illinois divorce cases commence with a battle over the custody of the minor children. Because Illinois has not adopted Presumptive Shared Parenting, both parents are pitted in battle against each other for the parenting rights to their child or children. While Illinois' refusal to adopt shared parenting, to my mind, is unhealthy and inappropriate, arguments in favor of keeping the antiquated "winner-loser" formula for custody in Illinois do not stand the test of time nor reason.

There are four general arguments against shared parenting that are typically advanced.

(1) Custody should go to the historic "primary caretaker," which most typically has been the mother.

(2) Children need a "stable environment" and therefore should not spend equalized time with both parents.

3) Children should not be exposed to post-divorce parental conflict; and

(4) Shared parenting is unworkable because it is not practicable if the parents do not reside in the same community;

All the evidence indicates that these arguments fail for not adequately considering the importance of both parents in a child's life. A major study by Dr. Robert Bauserman published in 2002 in the Journal of Family Psychology examined all existing studies regarding joint custody from 1982 to the date of the study, encompassing 2,660 children. He concluded "Children in joint custody arrangements had less behavioral and emotional problems, had higher self-esteem, better family relations and school performance than children in sole custody arrangements. In fact, all these children were as well adjusted as intact family children on the same measure, said Dr. Bauserman, "probably because joint custody provides the child with an opportunity to have ongoing contact with both parents."

Joint custody and shared parenting do not necessarily mean 50/50 division of time with the children. In some cases, a 50/50 allocation is not workable, nor does it serve the interest of the children. However, giving one parent an almost exclusive parenting role with the children while relegating the non-residential parent to the role of "visitor" is wrong, and more importantly, it is unhealthy for the developmental lives of the child or children.

The current studies bear out that shared parenting serves the interests of both good parents and the developmental lives of the children. This is but one reason why this Firm fights for the rights of parents to have the strongest and most actively participatory role in the post-divorce lives of their children as possible.

It's rare to run across someone that does not have a Facebook or Twitter account. While few teens these days exist without a Facebook account, Facebook has been especially popular among adult users, allowing the account holder to share family stories, photographs, and to reconnect with long lost classmates.

Facebook has also begun to have some interesting interplay with divorce and custody litigation. See this recent story about how a Facebook account was used by divorcing parties in a high conflict divorce case: http://www.theglobeandmail.com/life/the-hot-button/the-most-bizarre-use-of-facebook-in-a-divorce-case-ever/article2054594/

I observed only last week a hearing in one of our Illinois courts that involved an interesting (and probably not uncommon) use of Facebook. The Wife was on the witness stand testifying to her relationship, or lack thereof, with a gentleman whom the Husband claims is a paramour that has had contact with their couple's minor child. Wife denied any real relationship, and denied that the alleged paramour had ever been in their home.

Following the Wife's lengthy and detailed denial of the relationship, Husband's attorney produced a series of Facebook screenshots that Wife has posted on her account, her sitting with the paramour on the sofa in the couple's living room. The demeanor of the two suggested more than a casual acquaintance.

Facebook, in the end, proved the spoiler for the Wife's case. While the judge did not decide custody issues based on the Facebook information, the judge did find that the Wife had testified falsely under oath, and barred her from further contact with the paramour while she was with the minor child.

Social media have proven to be a huge benefit to teenagers and adults alike, allowing for connectivity and interaction between friends and distant relatives. In the context of divorce, however, all divorcing parents should be mindful that these days, with electronic discovery being a simple means toward illuminating potentially negative facts of a case, that Facebook "friends" may turn out to be evidentiary enemies.

If you're going through a divorce, be mindful that whatever you post on Facebook or Twitter may be printed and admitted as evidence into your divorce case.

Writer and Professor Michele Weldon writes today in the Chicago Tribune about her experiences with her devoted father, as well as her negative experiences with the father of her three children.

Why a father has more than rights; he has responsibility

By Michele Weldon

As it is for many fatherless families across the globe, this Sunday is a reminder that fatherhood should be more than a biological feat; it is a primal moral responsibility and one that many men regrettably fail to fulfill. http://www.littleurl.net/7f5335

I empathize with Prof. Weldon, and appreciate that she recognizes the thousands of fathers who love, mentor and raise their children well. I also can suggest that for many fathers, Father's Day is a difficult day, especially if Dad is a noncustodial Dad who sees his children far less often than he wishes.

A big part of my practice is representing parents in complex divorce and custody cases. I enjoy representing fathers who seek to have either the residential custody of their children, or who seek a full and shared parenting agreement.

While there are fathers who do not maintain their connection and investment in their children's lives, as Prof. Weldon discusses, there are many fathers who wish for, and fight for, more time with their children, and fight to have an equal and active parenting role in the post-divorce lives of their children.

It is these fathers that desire to have the fullest involvement possible in the lives of their children that I celebrate, and I am proud to represent any parent in a difficult divorce case that truly has the best interests of their children in mind, and wishes the fullest and most devoted parenting role possible.

To these Dads that put their hearts and souls into their parenting, we celebrate you, this Father's Day.

The article below appeared in a recent Huffington Post. The article explores a study investigating patterns of father-child contact following divorce. Left out of the study seems to be the inclusion of fathers who benefit from a shared parenting agreement, whereby father and mothers share the parenting of the children and agree to live reasonably proximate to each other. In my practice, shared parenting agreements are primary goals of my approach to managing custody cases for fathers. In other cases, I am seeking outright primary custody for my Dad clients. Good and devoted fathers must have the same rights as good mothers in divorce. The study below, however, adopts some stereotypes of nonresidential fathers , but the study itself is interesting and worth reporting here:

By: Robert Hughes, Jr., University of Illinois at Urbana-Champaign, Professor of Human Development

The general assumption about fathers following divorce is that they gradually have less and less contact with their children. Everyone seems to know some exceptions, but most generally think this is what happens. But what really is the case?

A recent study by Jacob Cheadle, Paul Amato and Valerie King published in Demography in 2010 suggests that the pattern of father involvement is more complicated and more interesting. Cheadle and his colleagues note that most scientific studies up to this time have confirmed the view of diminishing contact over time, but these researchers use a large longitudinal data set and more sophisticated data analysis methods to suggest that all fathers don't act alike.

Four patterns of father involvement emerge. The largest group of fathers (about 38%) consistently had high contact--roughly about once per week over the entire 14 year period. Children in this group were older, had better educated parents and these fathers were more likely to be paying child support. The next largest group (about 32%) were fathers who had contact only about once a year from the initial separation and continued to have little contact over the entire period. These fathers were more likely to have had children outside of marriage, were young and had less education. Importantly, many of these fathers lived more than 100 miles from their children within the first year following the separation.

The two other groups changed their pattern of involvement over time. Almost 23% of the fathers began with almost weekly contact, but by eight years post-separation were having contact only about once per year. Even by two years this group was only having contact every other month. Interestingly, these fathers were still likely to be making child support payments, but many also lived father away from their children due to a residential move (either themselves or their former partner). The final group representing 8 percent of the fathers increases their contact over time. They start at a few times per year and then increase until around 8 years when contact is almost weekly. This change in many cases appears to have resulted from the fathers living farther away the first years following separation, and then moving closer to their children. Both of these patterns suggest that geographic distance from children may be the biggest factor causing changes in the amount of contact with children.

These findings provide a much clearer picture about the patterns of contact by nonresidential fathers. There are clearly various patterns suggesting we should think about these fathers in more varied ways and begin to understand some of the factors that may cause more or less involvement. Those fathers who initially have little involvement may be the ones that need support in becoming more involved with their children.

Divorces cost too much. I have practiced long enough in Illinois to understand that the process in the Illinois Court system of divorcing and reaching custody determinations takes too long, and costs the divorcing parties too much. My fees for divorce cases, including those that reach trial are always a fraction of that of my opponent's fees, and I work hard to keep costs down for my clients, but I still feel that the present system promotes delay, stress and cost for families. Why is this so, and how can all of us in the system work to change it?

First, the process itself is inefficient. Divorce cases are filed, and the courts set lengthy periods in which the opposing parties appear to set case management schedules. Then there is the endless march of discovery: Marital Interrogatories and lengthy and cumbersome Requests to Produce Documents, subpoenas of bank and credit card records that the parties won't produce voluntarily, depositions, motions, hearings over temporary issues: all of this activity which is billed to the client by the hour.

If the case can't settle, there is trial preparation. Finally, months later, the trial date, whereupon the judge sets a pretrial conference in chambers and the lawyers and judge work toward settlement with the judge's input. The lawyers then go out into the courtroom hallway and work with their clients under the pressure of the trial setting and try to settle the case.

Mark Baer's article, cited below, suggests mediation as an avenue for reaching earlier, cost effective settlement. As a mediator myself, I'm a proponent of mediation, but I disagree with Mr. Baer as to the efficacy of mediation in a complex or contested case. Mediation requires the absolute willingness on the part of both parties to reach settlement, and the parties need to have the emotional and logical balance to mediate. If one party is resistant, or confused, or feels stress, mediation tends to fail. My recommendation is the "Cooperative Divorce." I have trained in and taught cooperative divorce for years; it's an efficient, lower cost methodology of getting to resolution that does not involve active litigation but does allow for the intervention of the settlement judge, during the cooperative process, if needed.

Please contact my office at (630) 232-2400 if you'd like more information about my Cooperative Divorce strategies.

Credit to: http://www.markbaeresq.com/documents/Why-the-US-Family-Law-System-Is-Barbaric.pdf

Virtual Visitation and Out of State Removal of Children

"Virtual visitation" is a term that is gaining relevance in Illinois divorces. It refers to using online video programs like Skype to create a visual and audio connection by which physically distant parents can connect online with their children.

A recent New York divorce case granted a mother's request for permission to move with her children to Florida, despite the fact that the children's father would continue to live in New York. As a condition of the removal order, the mother had to agree to allow the children to visit with their father via Skype, an Internet service that allows for live videoconferencing. The New York judge noted that economic conditions justified the move, as the parents' house was underwater, employment prospects were dim, and the mother had supportive family in Florida.

Comment: I have always favored "virtual visitation," and have written "Skype type" e-parenting language into parenting agreements, but only to allow for each parent to have enhanced and increased contact with their children when the children are not residential with them. I like the fact that Skype permits an enhanced experience for Dads and kids; far better than the typical evening phone call that most agreements provide for. I use these "Skype" clauses even when the children and parents live in the same city. However, I have never advocated that the use of Skype be a factor in permitting the removal of children to another state. Put simply, removal is a harsh and destructive outcome for many parents, usually Fathers, who must suffer the loss of local contact with their children after divorce. Fortunately, unlike some other states, Illinois law disfavors removal of children, but I can tell you that judges here do grant removal petitions.

If you are facing the possibility that your spouse may try to remove the children from Illinois out of state, on the pretext that there is family or friends in some other state, aggressively defending removal is critical. In my view, while "Skype" has been a boon to facilitating enhanced contact between nonresidential parents and children within Illinois, it should never be considered a substitute or factor in a removal case. Call my office for a consultation if you have concerns that your spouse may seek court permission to leave the state with the children during or after the divorce.