Articles Posted in Child Custody

If a couple decides to resolve their divorce using the collaborative divorce process, they will have the benefit of working together and with a team to develop their short and long-term holiday plans. In New York, families who work within the collaborative divorce process sit down and discuss the holidays with their family specialist, who serves as a child specialist and a coach for the parties’ communication. When the parties use the collaborative divorce process, the family specialist will help them look at a variety of options for their time with the children. The family specialist can advise the parents what the best options will be to help the children (and often the parents) have the healthiest parenting time arrangement going forward. This conversation is not going to be a legal conversation. Generally, the lawyers aren’t even involved unless there’s a real sticky situation, which is not that common in the collaborative divorce process. The lawyers give some overall guidance to their clients, but because they are working with family specialists who the lawyers know well and trust, the entire experience for the parents and usually the children is very different from that in a litigated divorce. In the collaborative divorce process, the focus is on the children and in the end, that usually is more beneficial to the parents, too. 

Part 1 of our 3 part series on holiday planning during divorce focused on putting your children first. Here, in Part 2, we focus on creative solutions to celebrate the holidays that are available through the collaborative process.

Creative Solutions

For most people, the holiday season is the happiest of times, but for families in the middle of a divorce or after the conclusion of a divorce, this season can be the toughest. Parents often say their top goal in the divorce is that the children’s lives don’t change. But realistically, whether because of divorce or other circumstances, children’s lives do change. If parents can take care of themselves so that their own pain from the divorce is not the overriding shadow darkening the holidays, they can use this time as one of the greatest teaching moments as parents. For this reason, we have put together a 3-part holiday planning series to help divorcing or divorced parents navigate the holidays with as much ease and joy as possible. 

Here, in Part 1, we focus on families who are in the middle of the divorce process or have only just recently decided to end their marriage. This can be a tricky time because when you’re in the early or middle stages of divorce, a final agreement has not been reached and finalized. 

Like so much of a family’s life during this time, everything, including the holidays, feels like it is in suspense. In a pending divorce, when parents are preparing for and attending meetings with their attorneys and other divorce professionals, the process can leave them feeling overwhelmed with their day-to-day lives. Suddenly, one of the holidays is just around the corner and it hits them: what are we doing this year? Here are some holiday planning considerations for parents in the middle of a divorce.

When same-sex marriage became legal, same-sex divorce also became legal. Divorce among same-sex couples is lower than the average but that is mainly because LGBTQ couples in long-term relationships were the first to marry when same-sex marriage was legalized. As more marriages occur, the statistics on divorce in the LGBTQ community are expected to approach the numbers of divorce in the general population. And many of these couples will have children, which means they will need to make difficult child custody, child support and parenting decisions. That’s not different from most divorces. What is different is that the issues that arise when same-sex parents divorce can be much more complicated.

The US Supreme Court landmark decision on Obergefell v. Hodges on June 26, 2015 ruled that there is a fundamental right to marry and required all 50 states and the District of Columbia to both license and recognize same-sex marriages under the 14th amendment. However, the courts are not equipped to deal with modern, complicated family relationships – and laws don’t reflect today’s family. When a married LGBTQ couple or unmarried same-sex partners share children, the parents need to be pro-active in protecting their parental rights and the rights of their children. Whether the couple stays married or separates, protecting the legal rights of both parents and the child should be their first priority.

  • Non-biological parents need legal authority to make healthcare decisions, even in an emergency situation.

Today almost half of all births in the United States occur outside of marriage. This is the new normal but the law hasn’t necessarily caught up. Laws vary by state on parental rights for non-married parents. In New York, biological parents do not have automatic parental rights or obligations to their children, including child support and child custody, or the right to make important decisions about the child’s future such as education, health care and religion. Parents either have to agree on these issues, or a court will do it for them.

Healthy co-parenting that stems from thoughtful agreements you’ve made together is in the best interests of your child and makes both the parents and the child feel secure. If you have a child and are not legally married to the other biological parent, you need legal protection to clearly define each parent’s rights and responsibilities.

A well-written parenting and child support agreement is a roadmap of how you will raise and support your child together while living in separate homes and will help you avoid costly, stressful and time-consuming litigation.

Couples who are divorcing strive to make decisions in the best interest of the children. However, co-parenting after a divorce is challenging and parents are people too: sometimes they make bad decisions when it comes to their children which they later come to regret. You can avoid causing your child the anxiety and pain of parental alienation by avoiding these specific actions.

1. Do not speak negatively about the other parent or his or her family.

It’s likely that your list of grievances with your ex-spouse and ex-in-laws will be long and complicated, but your child does not need to know that.  This is true even if there was physical or emotional abuse in your relationship that the child witnessed first-hand. A therapist who understands child development can help you determine exactly how you should talk to your child about what he or she witnessed based on your family’s unique circumstances.

Nothing could be worse than a very public divorce – except for a very public custody battle. Every detail of Angelina Jolie and Brad Pitt’s courtship, marriage, childrearing and divorce have been chronicled in the newspapers, so sadly it is no surprise that their child custody dispute is now making headlines.

While the court documents are rightly closed to the public, the latest custody ruling appears to provide Pitt with increased time with his children and limits the amount of involvement Jolie can have with his interactions. According to published reports, “a judge in the couple’s ongoing divorce case said the six children not having a relationship with their father is harmful to them… it is critical that each of them have a healthy and strong relationship with their father and mother.”

The issue appears to be parental alienation, a common side-effect of an adversarial divorce. As I stated in a previous post, parental alienation may not always be intentional, but it always causes harm.

Conspiracy theorist Alex Jones has been in the news lately, and it’s not just for the warped claims he makes on his website and television show “Info Wars.” (Outlets which regularly disseminate Jones’ claims that “9/11 was an inside job”; the school shooting in Newtown, CT was a hoax; and that the government can control the weather and use it against its people.) Instead, Jones has been making headlines because of a custody battle with his ex-wife, Kelly Nichols, who is the mother of his three children.

Earlier this year, Nichols asked a Texas court to award her custody, claiming that Jones’ bizarre behavior, both on and off the air—and his ongoing campaign to alienate their children from her—showed he was an unfit parent. She claimed he was emotionally unstable and incapable of providing a nurturing home, and that he was purposely instilling deep emotional abuse upon the children by “erasing positive memories” of their mother. For his part, Jones claimed his on-air persona is a character, that many of his theories are sarcastic, and that it was Nichols who was an unfit parent.

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An interesting decision out of Suffolk County recently established custodial rights of a non-biological parent who was part of a polyamorous relationship. In Dawn M. v. Michael M., the court essentially affirmed the validity of a non-traditional family composed of two women and one man.

Though their names have been revealed in the media, for our purposes we will call the family members Mom 1, Mom 2, Dad, and Child.

Mom 1 and Dad were a married couple who had attempted to conceive with great difficulty. They utilized in vitro fertilization, but unfortunately Mom 1 miscarried. It was after this that the couple befriended Mom 2, who eventually moved into the lower level of the duplex that Mom 1 and Dad occupied. The three grew close and eventually came to consider themselves a family. Mom 2 moved into the upstairs flat a short time later.

After some discussion, the trio decided to go back to the infertility doctor in order to inseminate Mom 2 with Dad’s sperm—but the doctor refused to take part because Dad and Mom 2 were not married. So they decided to do it the old-fashioned way.

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Kafkaesque: of, relating to, or suggestive of Franz Kafka or his writings; especially: having a nightmarishly complex, bizarre, or illogical quality, as in Kafkaesque bureaucratic delays.
(Miriam-Webster online dictionary)

As ProPublica recently revealed in detail, Kafka’s dystopian vision is a terrifying reality for many New Yorkers who have had judges appoint forensic psychologists in their custody dispute cases.

In Joaquin Sapien’s thorough (and thoroughly disturbing) article, For New York Families in Custody Fights, a ‘Black Hole’ of Oversight, he reports on the story of a mother separated from her son as a result of an error-filled and incomplete analysis made by a court-appointed forensic psychologist.

In New York, if parents have custody disputes that they cannot resolve on their own, they go to Family Court or Supreme Court. These courts often appoint (and the parties pay for) a forensic psychologist to interview the parents, the child, and other people in their lives such as teachers, caregivers and grandparents. The purpose of these interviews is to help the psychologist make an analysis and issue a report that is meant to help the judge decide what custody determination would be in the best interests of a child.

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Before marriage was made available to every American, same-sex couples struggled with issues that married couples could take for granted – like hospital visitation rights, after-death services and inheritance rights.

In order to achieve that same peace of mind that married couples enjoy, gays and lesbians came up with some brilliant solutions to bridge the dire straits in which they found themselves. In New York City, the government began a Domestic Partnership registry which granted hospital visitation, health insurance coverage and the inheritance of rent-controlled apartments, among other things. But because those provisions only applied to government-run agencies, lesbians and gays took matters into their own hands to protect themselves and their partners in the private sector through the use of wills, healthcare proxies and burial instructions. Continue reading