BY JOAN H. MCWILLIAMS
When you are struggling with the financial, psychological, and legal issues associated with a divorce, it’s difficult to remember that your children need more attention than ever before. The good news is that your children can successfully survive your divorce if you follow some basic commonsense guidelines. The following will help you provide for their needs at all stages of the process even as you face your own challenges.
A Child Agreement is a plan for how you will treat your children before, during, and after your divorce. Unlike a Parenting Plan that provides for the way in which you will make major decisions for the children (custody) and the way they will spend time with you and your co-parent (visitation), a Child Agreement simply reflects your intent and serves as a guide in troubled times. Ideally, you and your co-parent can agree on the terms of your Child Agreement. If not, make the Agreement with yourself and use it as a self-directed guide.
The provisions of the Child Agreement can be quite simple. For example, you might make the following commitments.
Your Child Agreement will serve as a beacon of reasonableness in the heat of your divorce and after the divorce is final. Unless it is incorporated into your Parenting Plan, the Child Agreement may not be enforceable in court. However, it will be a reflection of your intent, your goals, and your values. It will benefit your children.
For many years, professionals have told parents that conflict hurts their kids. However, we now have studies that clearly show that unresolved parental conflict in the children’s presence not only hurts them at the moment they witness or listen to the fighting or arguing, but it can affect them, literally, for the rest of their lives. They may suffer from chronic stress, fear, or anxiety. They may experience uncontrolled anger, depression, or delinquency. Some children perform poorly in school or have suicidal thoughts. These conditions can continue into adulthood and affect children’s health and their ability to cope in the adult world.
Published in Family Advocate, Vol. 41, No. 1 (Summer 2018). © 2018 American Bar Association. All rights reserved.
This does not have to happen. If possible, make an agreement with your co- parent to take your con ict away from the children. You may (and probably will) have arguments, but take them out of the presence and earshot of the children. Separate your anger with the other parent from your relationship with the children. It’s challenging—but it’s critically important for your children.
Unfortunately, parental disagreements are not the only conflict that endangers children. Societal con ict does as well. It may be in the form of actual or threatened violence, or it may be virtual violence that comes into your children’s lives through television, the Internet, video games, and explicit recordings. Mobile Internet access puts cyber-bullying, violence, and pornography in the hands of your children if they have a smartphone or tablet.
While you will never be able to shield your children from all threats, you and your co-parent can agree on rules for your children regarding their use of mobile devices. You can talk to your children about potential online dangers and put parental controls on all electronic devices. If your co-parent does not cooperate in protecting your children from these dangers, it may raise legal issues you should address with an attorney. Hopefully, this will be a joint effort between you and your co-parent. It is critical that you work together to define the guidelines for your children and that you cooperatively enforce them.
One of the most painful conversations you will ever have will be the conversation with your children in which you tell them that you are getting a divorce. For some children, it will be a relief. Others will be very aware that something has been wrong for a long time, and the announcement will come as no surprise. Others will be devastated and broken-hearted. For all children, it represents the start of an enormous change in their lives.
Regardless of whether your children anticipate the announcement, there are ways in which you can handle the conversation to lessen the pain.
In your painful moments, you may be tempted to tell the children far more than
they want or need to know about your situation. Be cautious. This is a time to protect your children and shield them. They really just want to know that you still love them and that you will continue to support them and provide for them.
Children usually want to share their ideas about things that affect their lives. They are stake-holders in the family and have a significant interest in the outcome of your divorce. Many children want to know that they are part of the solution. You and/ or the other parent will be responsible for the ultimate decisions you make for your children. But if your children are allowed to speak to issues that are important to them, they will know that you have heard them and validated their efforts.
There are many ways you can accommodate the children’s wishes to be heard. Of course, they can speak directly to you. However, some parents retain the services of a mediator to meet with the children and report the children’s ideas to them or facilitate the communication with all family members. Alternatively, it may be helpful for the family to work with a therapist or counselor to discuss their opinions. The therapist meets with the family members to facilitate discussion of concerns, expectations, and goals. You should sign a confidentiality agreement if you want this process to be confidential.
Sometimes children, particularly older children in contested divorce cases, appreciate the opportunity to speak to the judge. Because not all judges are trained to speak to children and some judges do not want to speak to children, the availability of this option will depend on your particular situation.
Children can, in some instances, be witnesses at trial if the judge allows it, but this can be very traumatic for the child. To avoid this situation, you may want to ask the court to appoint a custody evaluator who can interview your child and other people who play an important role in your child’s life. The evaluator may also observe your child with you and, separately, with your co-parent. The evaluator will write a report to the judge and submit it to the court. The evaluator may be called as a witness. It is a way to gain an understanding of your child’s ideas without having him or her testify.
A child can also be represented by an attorney who, depending on the laws in your state, may be appointed by the court. It is important to understand the role and responsibilities of the child’s lawyer. Depending on the nature of the appointment, the lawyer can provide independent legal counsel for your child, in which case, he or she would owe the same duties to your child that would be owed to an adult client. Alternatively, the lawyer would provide independent legal services for the purpose of protecting your child’s best interests without being bound by your child’s directives or objectives. The roles of the attorney may be defined by the laws of your state. However, having a lawyer for your child is a way to assure that his or her voice is heard. It can be expensive, but it may be an alternative to consider.
Children often benefit by having someone they can talk to (other than a family member) about their situation. In such cases, parents can retain the services of a counselor or therapist. For some families, this is a preventative step. In other words, a child might not appear to be having problems, but the parents want to create a relationship between the therapist and the child so that they can call upon that person if the child needs help in the future. Other parents can see that their child is having problems and believe that counseling would be of great help.
There are things you may want to consider when making this decision.
It’s extremely helpful in many cases for a child to have a person with whom he or she can speak confidentially. A divorce creates many changes for children, and they often benefit by being able to step away from the conflict and quietly explain their situation to an independent third party. However, it is the responsibility of the parents to select a counselor who is competent and trustworthy and who can relate to the child.
Resilience is the ability to recover from change, difficulties, misfortune, and adversity. It can enable children to escape from the pain of their parent’s divorce and, in particular, unresolved parental conflict. Even if a child’s experience has not been marred by adversity, it is, nonetheless, a remarkable life skill from which children can learn to regulate their emotions and behavior and establish healthy relationships. You can help your children develop resilience and guide them toward a successful adulthood. To develop resilience, your children must have:
Resilience can be learned and developed. So be mindful of the needs of your children. Take responsibility for them. Anticipate problems and make agreements with your co-parent to protect them. Give your children the gift of resilience.
Successfully managing your parental responsibilities before, during, and after your divorce will be one of the most challenging things you ever do. But if you do it well, it will be one of your most rewarding. Your children may not recognize your efforts, but their well-being and accomplishments will be a reflection of your good work. fa
Joan H. McWilliams (joan@mcwilliams mediation.com) is an attorney/mediator who has conducted a full-time dispute resolution practice through her rm, McWilliams Mediation Group LTD, for more than twenty-five years. Joan has received many awards and is recognized for her work on behalf of children. In 2017, she drafted an amendment to the Colorado Rules of Professional Conduct, Rule 2.1, Comment 2, which was adopted by the Colorado Supreme Court. The amendment, the first of its kind in the nation, states that a lawyer should consider advising the client that parental conflict can have a significant adverse effect on minor children. Joan is the author of Parenting Plans for Families After Divorce, The PeaceFinder, and her new book, Divorce. Conflict. Kids. She often speaks on the topic of children and divorce.