Sunday, January 3, 2010


Divorce New York Style: Reconcilable Differences

For my first "missive" of 2010 I thought I would ruminate on the issue of custody litigation. A truly contested custody battle will cost tens of thousands of dollars if not into the six figures. That does not include the emotional and psychological turmoil that accompanies the financial costs. I have several of these going on at any given time and the level of hate which is generated is really difficult to put into words. Alright, I do like words anyway, so here are a few: deep, visceral, disgust, powerful, horrifying, exhausting, all-encompassing, depressive, vengeful, manipulative. Nothing good here so far. Thank heaven we have Mr. and Mrs. Charlie Sheen to show us the way. (OK, so that was a joke, perhaps not a good one, but sarcasm does have a point. Now for the more serious stuff.)

The law is “gender neutral” these days—at least as it reads. In practice, custody is still in many cases a woman’s claim to lose although in my experience, it has never been a better time for fathers seeking and receiving custody. There are shifting, and in many cases already shifted, views in this regard. This is particularly so as society’s (therefore judges’) positions on fathers’ involvement in child rearing have also evolved. As we have an ever-increasing amount of working mothers and two income families, parental responsibilities have shifted from the stereotypical “stay-at-home mom” to sharing and/or delineating parental roles in which mother and father each take on child rearing tasks. This makes establishing a clear “primary caretaker” harder to do in many instances.

Taking the custody component of a divorce case alone -- obtaining background information, conducting an investigation (which entails not only the legal costs, but also the services of a private investigator), preparation of applications for temporary custody/parenting time, the costs of an attorney for the child(ren), court appearances, preparing the client for hearings/trial, witness preparation, forensic custody evaluation costs, etc., -- mount quickly. If the matter proceeds all the way to a contested trial, there are potentially hundreds of hours of time expended in legal and legal related services. (This, of course, presumes that there are legitimate issues involved or in the unfortunate event the court permits baseless claims to be strung out over months and years. Certainly, if one party is making a meritless claim for custody and the court sees it as such, the process is much quicker and less costly.)

If the parties can come to an understanding, it is well established that not only are costs drastically reduced, but the parties and the children usually feel more at ease with the decision which better serves the children and their relationship with both parents. The parties are then looking at a far less financial expenditure to finalize an agreement and have it reduced to an order of the court, vis-a-vis the extreme costs referenced above. Moreover, those who can settle are doing less damage to their relationship going forward and less damage to their children.

I am not as “child centric” as some as it relates to the legal wrangling of custody litigation. I find that the pendulum has swung too far in the child advocacy direction in custody decision-making. Unless there is danger to a child where the protection of the child and asking the child for input is crucial to the determination, subjecting the child to lawyers, judges, forensics, etc., seems not only detrimental to a young child, but it puts the child squarely in the middle—the place where everyone always says the child should not be. Cutting through all of the p.c. talk and gibberish, everyone wants to know “which parent does the child want to be with”. The answer to that question may determine not only custody, but also child support, occupancy of the marital residence and it guides the litigation. At the same time, parents are jockeying for position; they are being told not to discuss the litigation with the child (even while having some discussion as to the process has got to be more helpful than being kept in complete darkness); children have their own lawyer in the process and as a result wield more power than they should—they are after all, children, and we all know they would never try and manipulate a situation at any given time. This problem is compounded by the fact that no one has the real answer as to what is best. Psychiatrist and psychologist opinions seem to change from decade to decade. For example, it used to be that overnight mid-week "visitation" was frowned  upon as it was claimed to interupt the child's school year structure and parenting continuity; now it is favored. Views on "parental alienation" also appear all over the map depending upon the expert.

What is clear is that child custody litigation is an absolute mess, and unless you are sure there is a really good reason to litigate the issue to conclusion (and sometimes there are), take your child out of the middle, leave the hate and disgust for your spouse for other issues, and come to a fair, real life and practical resolution as adults and parents. Rest assured, there is plenty of time and money which we can still spend fighting for/against the business distribution or legitimate support issues or even trying to show the court what a dirt bag he/she is.

So, if you are a mother, don’t assume you have an automatic right to custody and that your husband will be relegated to seeing the children every other weekend. If you are a professional and are working 65 hours a week, think how exactly you are really going to have the time to be a full time residential custodian. If your spouse regularly has a glass of wine with dinner, don’t submit papers to the court alleging they are an alcoholic who can’t be trusted with the children. If you are starting another relationship with another man/woman/both, in the middle of your case and can’t seem to stop yourself, please keep it to yourself (at least until you can keep all their names straight and get your golf endorsements back). Everyone (including the Sheens) hopes 2010 will be a better year than 2009. Using some common sense and taking custody issues off the table is as good as any way to start. Happy New Year.