Needed Legal Changes
By Dr. Roger Pierangelo and Dr. George A. Giuliani
The stress of the separation and divorce process on families is well documented in the literature. This stress can be exacerbated by many factors that are dynamically different than individuals will normally encounter in life. New emotional patterns are created that are confusing and frightening and soon those emotions may be insulated by anger and rage. Children who experience their parents’ adversarial actions often become frightened and insecure. This can directly affect their ability to function in many areas of their lives. The legal process is one which uses a “compartmentalized protection”. An attorney’s compartment includes his or her individual clients; the judge’s compartment is focused on the legal aspects of the case; and the law guardian’s compartment, if one is assigned, is focused on the needs of the children. This compartmentalized system adds to the stress of the situation since individual needs rather than a systematic approach to help this family through this crisis may exist. At times, a Parent Coordinator may get involved but our experience shows that this part usually comes much later in the process after a great deal of damage has already been done. Consequently, what needs to be done is to install certain factors that will reduce the stress encountered by families. The focus of this article will be on exploring policy and practice considerations in the legal system for reducing stress and anxiety in the separation and divorce process.
Recommendation #1: Court Ordered Parent Coordination Whenever a separation or divorce case involves children, the parents should be mandated to meet with a Parent Coordinator as soon as possible. When judges feel that a specific issue or issues are preventing parents from moving the case forward, they may order court appointed therapeutic intervention. Here, the court clearly outlines what the therapist is asked to resolve and is strictly limited to those issues and those issues only. In Nassau County, NY, this program is called the Parent Coordination Program. For instance, if a judge feels that certain aspects of a visitation schedule need to be resolved or a holiday schedule needs to be determined, then this type of intervention should be available. This can be very useful when the flow of the legal process and levels of cooperation are high. In these cases, the participants should be assigned this process when the unresolved issues identified by the judge are not symptomatic of larger more destructive issues. For instance, two well-meaning parents may need a third party to fully understand all of the options and resolution techniques necessary to end a minor dispute. However, all too often, what is seen as a minor issue may really be a larger more destructive pattern that will never be resolved using this technique. If one parent needs to control, intimidate, hurt or invalidate the other, then this will be a problem in all of the issues discussed and would require a more intense form of intervention with less restrictions. Otherwise, this would be like trying to reduce a fever when the real issue is a serious infection. You may lower the fever temporarily but the symptoms of the infection will eventually show up in other forms. In many instances, courts mistakenly identify a problem as a specific issue rather than a more pathological pattern that could have serious repercussions.
Recommendation #2: Civility Coaching From our experience, the role for a new form of therapeutic intervention is needed to work with the specific and unique dynamics present during the process of separation and divorce. This process should be initiated at the very beginning of the separation and divorce process when children are involved, not after years of potential rage and the psychological destruction of children. Historically, once parents make the decision to separate or divorce, the battle begins and the emotional distance and lack of civility between the two parents exponentially increases. For all intents and purposes, the lawyers lead the battle for the parents, who are confused, frightened and hurt, and may stay in the background and become observers or informants. The problem here is that the severe emotional state of the parent may at times distort perception and influence judgment and the determination of real priorities. What further can then develop are feelings of anger, revenge and control, rather than logic, common sense and fairness.
Once the “battle” begins, the parents rarely, if ever, speak with each other in an attempt to resolve issues with the children. This increased emotional and physical distance actually increases anger, misconceptions and distrust. Everyday issues that need to be dealt with for the sake of the children are avoided. What the children see are two individuals whose anger, hostility and resentment are communicated through body language or verbal rage. Any other form of communication is usually done through lawyers’ letters and motions, most which cannot immediately assist the safety and security needs of the children.
In our professional opinion, a therapeutic intervention that would actually force parents to get closer (not emotionally but civilly) should be mandated. You do not have to like someone in order to be civil, but the motivating factor behind “Civility Coaching” is that you have to love your children more than you hate each other. For many parents, this issue is often lost. Not because they do not love their children but because there is no one providing a frame of reference with fair, logical and common sense boundaries and a monitoring environment to work out issues that will help reduce anxiety on a regular weekly basis. Most parents in the legal process of separation and divorce dread the thought of being in “therapy” with their spouse. That is because they are using the traditional concept where you get out your anger, pull scabs off wounds, fight and hear threat after threat, lie after lie, accusation after accusation and numerous historical negative experiences. That is neither the purpose or goal of Civility Coaching.
Civility Coaching is a very direct and therapeutically confrontational form of sometimes daily communication and weekly intervention sessions that factors in the psychological, legal and personality constructs of the individuals involved. While the parents formally attend weekly sessions, issues are resolved in a timely manner, sometimes daily (use of phone conferences with the Civility Coach, email, etc.,) in order to calm the situation, reduce feelings of helplessness, make people feel heard and provide a logical and fair arena for issues to be resolved. In this way, both parents begin to feel more anchored, less frightened and hopefully more willing to listen, delay inappropriate reactions, and more clearly see the implications of their behavior. It is a form of intervention whose main goals are to:
Protect the children from serious emotional game playing by the parents.
Protect the children from hostile behaviors on the part of parents that may artificially confuse their feelings about a parent.
Protect the children from being used as pawns in the court case.
Protect the children from their own parents who quite frequently have lost their ability to reason, maintain perspective and muster enough common sense for resolution.
Provide common sense, logical and fair rules and avenues of civility for the parents.
Make the parents accountable for the well-being of their children.
Make parents accountable for their behavior and provide healthier outlets for their feelings
Empower children with the tools that will assist them through this turmoil.
Teach children how to be neutral during the separation and divorce process by providing practical tools
Provide children with a common sense and logical anchor during this process that is available to them seven days a week.
Provide immediate outlets for tension by having someone to turn to so that it does not build into something destructive.
Provide better tools of civility for parents so their voices can be heard.
Many times, anger is really not the lead emotion but rather the vehicle for the real emotion. For instance, panic may come out as anger, vulnerability, fears of abandonment, feelings of being unprotected and so on are also emotions that may be misread because the person exhibits anger, which is a form of tension release for the real emotion. All too often, it is the anger that is reacted to by those around the person and not the real emotional need (e.g., the need for security and protection). As a result, the person never feels heard since the reactions are to the wrong emotion. Civility Coaching teaches people to read, label and verbalize the primary emotional need and reduce the need for angry outbursts.
In our experience, Civility Coaching can only work if parents are court ordered to cooperate with the Civility Coach. In traditional therapy, the therapist may take months to get the couple to agree on some compromise, whether it involves having the children call the other parent, getting kids ready for visitation, not denigrating the other parent in front of the children and so on. In the meantime, these inappropriate and destructive behavior patterns go on and the children begin the process of being scarred, sometimes for life. In Civility Coaching, it is clearly understood from the beginning that there are healthy ways to act if the children are truly the concern of the parents. In Civility Coaching, the parents are not the primary concern; the well-being of the children is the sole focus. Keeping in mind that the more civil the two parents are, the easier it is for the children to relax and be less tense and anxious. Reducing the distance between the two parents also makes it easier for children to go back and forth without fears of reprisal or guilt; what we call “fluid interaction”.
Civility Coaching, rather than traditional therapeutic techniques, is a more realistic approach during this process. Parent Coordinators would be in the best position to use this technique which is based on logical, common sense, fairness, and loving your children more than you are angry at each other. All Parent Coordinators should be trained in this techniques since the use of traditional therapeutic techniques may aggravate the situation.
Recommendation #3: Arena Parenting The process of separation and divorce is filled with a myriad of complications, unnatural arrangements, fears, frustrations, anxieties, and resentments. Children exposed to these feelings and the resulting behaviors on the parts of their parents are often confused, frightened, anxious and fearful. Nowhere is this potential volatility more apparent than in the case of two parents in the midst of a very hostile and volatile divorce proceeding and still living in the same house. All too often when in the process of a separation and divorce, parents may be told by their attorneys to stay put and not leave the house either to strengthen their legal position and assist in negotiations or because they are unable to afford separate housing arrangements. However, they are left in this position with no guidance, support or “arena” to vent their frustrations and learn how to cope with this very stressful arrangement. As a result, a new “living arrangement” should be instituted by the courts with very clear guidelines, boundaries and a monitoring system to protect the health, welfare and safety of the children. We call this system “Arena Parenting”. Arena parenting is a process that establishes a set arena time for both parents where the health, welfare and safety needs of the children are taken care of by one parent without the intrusion of the other. Arena Parenting is a process that allows for a more civil atmosphere for parents and children living in the same house during the separation and divorce process. It is imperative upon the courts to mandate this process as quickly as possible to calm the dangerous and damaging behaviors that arise from this stressful situation. Arena Parenting can provide a more consistency, logic, common sense and predictability to a very tense environment.
The Arena Parenting schedule would mirror a “visitation type schedule” if the parents were not living together. During one parent’s Arena time, the children would know that any issues, questions, etc. would be taken to the parent “on duty” that night. The other parent is free to do whatever he or she wishes and must stay out of the other parent’s arena that night.
The Arena Parenting Plan would be determined by the Parent Coordinator. So for instance, the father has Monday, Wednesday and Friday one week and takes care of all the issues and responsibilities during his time at home with the children’s mother. The children know it is his night to parent and go to him for any of their needs. The mother may have Tuesday, Thursday and Saturday that week and the same restrictions and protections occur. This Arena Parenting Plan stops the tension caused by intrusion, invalidation, pitting one parent against the other, forcing the children to choose between parents and relieves the need to constantly defend decisions made by a parent in everyday life during this stressful time. The Parent Coordinator would monitor the handling of the rules.
Recommendation #4: Marital Assessments
There are many types of assessments used in all professions. Schools use formal and informal academic and psychological assessments at the beginning of the school year to determine the strengths and limitations of children so that expectations are in line with their abilities and capabilities. Most schools will use a kindergarten screening before children enter school to identify high-risk children who will need special attention and support. This type of assessment reduces problems that some children would have in transitioning to school. The medical profession uses pre-op testing to make sure that all the conditions are within acceptable limits for patients prior to surgery. Doctors will also use extensive medical tests before any intrusive and/or extensive procedures are undertaken by the physician. Psychologists will use psychological examinations and intakes at the start of therapy to determine the mental status of a patient so that the therapist is aware of any fragility, mental illness, psychopathology, etc.
Unlike other professions, the legal profession in separation and divorce cases has no such vehicle to help determine the dynamics of parents and children at the start of this process. Consequently, judges and lawyers almost always blindly enter the litigation process. In general, the only intervention and awareness of family dynamics sometimes comes many months or years into a difficult case when a forensic evaluation is requested by the court. By the time these results are made available, so much damage may have taken place in the psychological development of the children that it may be irreversible.
A marital assessment, by a highly qualified and trained mental health professional, would be a requirement by the Court of all parents after filing for divorce where there are one or more children involved.
Historically, the filing of divorce papers is assumed to mark the start of a process that will be filled with a great deal of anger, anxiety, vulnerability, threats, confrontation and lack of civility. However, the presence of such feelings, in most cases, probably started well before any filing and has the potential to reach a point where the mental status and emotional well-being of the parents and the children can be severely impaired. When judges first review a case, they are very often completely unaware of the mental state and other pertinent information of the parents and children, as well as the dynamics that are present in the family at the time they first appear in court. Consequently, a great deal of time may be lost until a law guardian is assigned or a forensic evaluation is requested by the judge. And even then, a law guardian may not have the training to provide the judge with specifics regarding family dynamics.
A marital assessment at the start of divorce proceedings would provide a clear and comprehensive report informing the judge of the overall assessment of the present family interactions and dynamics. A marital assessment would not involve making recommendations or forensic suggestions. Instead, it would allow the judge to determine whether or not immediate court intervention is required for the children in the form of therapy or for the parents in the form of parent coordination, civility coaching or re-entry therapy (professional intervention is required to repair an alienated relationship between children and a parent). These factors should be addressed right from the start so that any damage to the psychological state of the children is prevented.
Recommendation #5: Workshops for Children on Surviving Divorce
As is mandated by the courts for parents who attend workshops on divorce, the court should have the availability of workshops for children of all ages to provide information and tools on how to survive the process. These workshops would be led by Parent Coordinators or other qualified professionals with the primary goal being to empower children and help them cope with the difficulties encountered during the separation and divorce process. However, unlike the two or three sessions that parents may attend, children should have a series of workshop sessions available to them over time to monitor their progress and help reduce changes of tension building up that may affect their performance in school or life.
Recommendation #6: Setting a Pedente Lite
One of the greatest fears in the separation and divorce process is money. One spouse may fear not having any financial cushion, especially with children, while the other may fear that he/she will be taken advantage of financially. Unfortunately, both parents may use money to control or seek revenge on the other. All the while, this financial vulnerability of having one’s financial control in the hands of an angry spouse or being afraid to wind up with nothing because there are no boundaries on the spouse needs to be changed. Since this issue creates so much stress and fear, it should be resolved immediately so that the contributing spouse knows exactly how much he/she will be paying every month rather than using money as a weapon by holding back payments, paying less, etc. What is being suggested to alleviate this stress is that the judge set down a pedente lite (refers to support payments that are paid to a spouse during the pendency of a divorce proceeding) as soon as possible in the process so that there are no fears or games played and both parties know exactly what they must pay or will have to work with during this process.
Recommendation #7: Direct Deposit for Child Support
One of the issues that create tension not only for parents but for children is the method of leaving monthly payments to one spouse. This power position is frequently used as a weapon and unfortunately, inaccurate or late payments are used as a means of gaining control or passive aggression. Further, in many cases where this occurs, the children are often used to try to get the payments from the late-paying spouse. Placing the children in the position of asking the paying spouse if he/she has the check is psychological devastating. The use of children as messengers and payment collectors places them in such stressful roles because the results are usually filled with angry, abusive, degrading or rejecting comments to be delivered to the other parent. What is being suggested is that immediate direct deposit be provided to avoid the insecurity and panic response that frequently accompanies this situation. It will also protect the children from ever being in that position.
Recommendation #8: Greater Accountability of What Attorneys Put in Writing and Say
From our experience, one of the most devastating times in the separation and divorce process is when someone is served with divorce papers. What ensues can be very devastating, vicious, demeaning, embarrassing, cruel, and in some cases, statements are made that border on criminal. The truth is, in the end, no one really knows the level of credibility of any of these statements. However, unfortunately, and all too often, we have seen papers where what was stated was completely untrue, never happened and was beyond an exaggeration of the facts.
Lawyers are only open to one side and may accept every statement from his or her client as fact without the need for evidence. In general, lawyers may not have the time, training or objectivity to monitor their own client’s behaviors that may facilitate or aggravate the process and further, proving destructive for the children. What follows then is the need of the other party to counter these statements to the court with their own “stories” and fabrications and elevations of the truth since they must overcompensate for the viciousness of what was said or written about him/her. This vicious atmosphere does nothing but aggravate an already tense situation and makes resolution even more difficult.
We feel that judges need to step in and hold lawyers accountable for the determination by fact, observation, records, reports and investigations of whether or not the statements being made to the court are indeed truthful. After all, fabrications, exaggerations and lies should not be the basis upon which a judge should decide the fate of anyone’s future especially when children are involved. Further, the final decision should also not be the result of how well a lawyer argues a case since that has no bearing if the great argument is being presented with facts that are not true.
Recommendation #9: Operationally Define Terms in All Agreements
Many of our cases with the courts have involved post-divorce counseling where the parties have unresolved issues concerning the interpretation of the divorce agreement. Considering that many of our clients have paid well over six-figure dollar amounts getting this agreement, it is questionable at best that they must figure out the meaning of some of the conditions in the agreement. Terms such as “liberal visitation”, “extracurricular activities”, “sensible late period for pick-ups”, “within a reasonable amount of time” and other terms are what can be thought of as vague generalities. These vague generalities create an atmosphere where the two parties must engage again after a bitter struggle and relive the battles for control again. While some parties are able to successfully work this through with the assistance of a therapist or parent coordinator, most either fight or return to court for a decision on the interpretation. Operationalizing all terms means that there is no misunderstanding and all the terms are objectively defined. For example, “within a reasonable amount of time” could be worded as the parent picking up the children must do so within a 15 minute window. If the parent is unable to pick the children up at the designated time or within 15 minutes, then he or she is required to make other arrangements for pick-up so as not to hold up the other parent with his or her plans. We’re not looking to define the terms in this article, what we are recommending is that the terms be operationalized so there is no confusion as to their meaning.
Recommendation #10: Provide Post-Divorce Transition Counseling
Just because a couple has finalized its agreement does not stop the emotional upheaval that has been created by this process. Turning the key off on a train going 100 miles an hour does not stop the train on a dime. A series of post-divorce counseling sessions should be required for the sake of the parents but more importantly for the best interests of the children. Topics such as co-parenting, schedules, the agreement conditions, stress factors and responsibilities as a single parent, in-law reactions, etc. all need to be discussed now that the parents are entering a new life and parenting style.
Recommendation #11: Dynamic Divorce and Separation Training
One of the most difficult functions facing court officers (e.g., law guardians, court appointed therapists and judges) is the determination of the true motive behind the reluctance of a child at any age to maintain visitation with a parent during separation and divorce cases. In order to fully understand the dynamics behind reluctance and the many possible motives, one must first explore the developmental characteristics and variables that influence children in dealing with the stressors of separation and divorce.
For instance, the presenting problem first encountered by court officials may be a rigid, non-negotiable stance by the child that involves realistic reasons for the reluctance of participating in visitation. If this presenting problem is taken at face value, which all too often occurs by untrained personnel, then the child may actually be placed in a compromising position that will aggravate his/her already stressful situation. Instead of immediately accepting the rationale of the child as fact, court officials need to be aware of the variety of underlying motives that all present in the same fashion, namely reluctance. Reluctance to visitation on the part of children has numerous possible motives (e.g., identification with the aggressor) and it is imperative that the correct motivation be understood. Believing that children’s true motives always lie on the surface may result in decisions that add to the trauma of the situation.
Recommendation #12: Stop the Game Playing
All too often, clients are confronted with “games” by the other party. An example of this is in the case of child support papers. All too often, deadlines are missed, payments are made late, illegal deductions are taken out at whim and some payments are not even made. Since this money is in the best interests of children’s needs, the courts should jump on this “game” immediately if presented with facts of game playing.
A second game that too often happens is the cancellation of visitation at the last minute which places undue stress on the waiting parent. While this may realistically happen, a factually presented pattern should be dealt with immediately since it can be evidence of passive aggression, irresponsibility or narcissism. None of these are acceptable since the stress, burden and possible interference of plans are on the parent waiting.
A third example is a parent making plans or appointments (that can easily be made at other times) on the visitation time of the other parent. This is also a control issue and while responsibility should be shared, this pattern becomes obvious when it presents as a pattern.
Currently, when situations like these arise, the grieving parent will file to the court and the case may be heard several months later. Further, the guilty parent may change the pattern right before court so that the offense is minimized. But, after the court appearance and ruling, many return to the same “games.” Ultimately, all “game playing” needs to be seriously assessed and stopped if patterns are evident.
Recommendation #13: Parent Accountability
Parents involved in matrimonial cases will often expound on their virtues when it comes to the welfare of their children. They will speak about how they truly want their children to have a healthy relationship with their spouse, want the children to be happy, be willing to do anything to prevent scars for their children, cooperate with their spouse, etc. However, all too often, their behavior and words never line up, and what occurs is often the complete opposite. The parents’ fragile emotional state, brought on by a sudden fears involving possible severe changes in finances, safety, sense of protection, environmental living conditions, social connections, emotional and sometimes vocational needs become the new and overwhelming focus in their lives. Since these fears now drain energy like never before, the judgment and perceptions of parents from issues that might be in the best interests of their children now become distorted. What may result are actions and behaviors toward each parent that do not take into account the impact on the well-being of children.
The period of time when parents are involved in the legal process of separation and divorce can become a very artificial, unnatural and psychologically destructive time for their children. This is a time when logic, common sense and fairness may not be the driving force behind the parents’ behavioral choices. Consequently, parents may exhibit or initiate behaviors that create extreme stress on their children, almost sacrificing their well-being, in an attempt to get revenge, control, or express extreme anger towards the other parent.
The choices of behavior on the part of the parents will need to be identified as quickly as possible by judges, law guardians or parent coordinators assigned to the case. If these destructive and unhealthy parental behaviors are not identified quickly, and intervention not take place, then permanent damage to the children’s mental health has a very high probability of becoming a reality. There is no excuse on the part of the legal or psychological system to allow such destructive behaviors to continue once identified. While parents may deny that they do these things, the behavior of the children almost always provide a record of what is actually taking place and what true messages are being conveyed, direct or indirect, to the children. Behavior is always a message and it is very important that professionals involved in separation and divorce cases learn to better understand children’s behavior so that they can intervene quickly and reduce their stress.
The psychological devastation that can occur in children as a result of unhealthy parental behaviors during the divorce process may first show up in school and sleep patterns. The tension brought on by the child’s hesitation in saying things, fear of hurting the other parent, guilt, fears of retaliation and abandonment etc. add so much tension, that concentration, focus, motivation, judgment, and patience, completion of tasks, grades, and appropriate behavior, all deteriorate quickly, since the required energy for these factors is drained away to deal with the inner turmoil brought on by the parental behaviors.
These destructive and stress provoking behaviors on the part of parents may at times be very subtle. Some may be motivated by personal neurotic needs, while others are motivated by nothing more than to hurt and neutralize the other parent’s role in the life of the child as much as possible.
The Parent Coordinator assigned to the family should monitor such behaviors, attempt to retrain, or assist to change such behaviors. However, if the parent continues these destructive tactics that jeopardize the health, welfare and safety of the children then the court would need to step in and set boundaries. A behavioral contract that outlines acceptable behaviors and consequences of not following these guidelines can be developed between the parent coordinator and the parent in question.
Recommendation #14: Keep Clients Frequently Updated
It is imperative that lawyers recognize the importance of their position to a client going through the pain and fear, and panic of a separation and divorce. Like a lifeguard and protector, a lawyer anchors the client during a time when fear, anxiety, confusion, anger, guilt, and above all fears of abandonment are present. While the process is a long one and lawyers are burdened with so many factors on a daily basis, some type of consistent communication should be explored. Clients know that a lawyer’s time is valuable and spread very thin among so many clients.
However, all clients like to feel that they are part of a lawyer’s thinking on a regular basis and not just when they reach out with anxiety driven emails, some of which can be very confrontational or angry. However, since anger insulates many other emotions like fear and panic, a lawyer initiating a spontaneous short email every so often would be beneficial in keeping down fear, anxiety and panic which many times is displaced on children.
We feel that there are several types of clients that should be recognized by lawyers as needing this type of encouragement. Depending on the issue, the communication to the client can sometimes even be handled by an administrative assistant, law clerk, intern, etc. so as to not burden the lawyer. Any communication makes the client feel less alone and frightened. Short notes like, “Still waiting to hear from the other lawyer-hang in there; or “Just received a letter from your husband’s attorney; I’ll get back to you later this week to discuss”. It is not realistic to send these out often but lawyers should realize that it is far better for them to be in control with the emails then get a barrage of questioning, long, and angry emails at times that are not within their control. What sometimes happens then is the lawyer is way too busy to answer these long emails and the fears and anger on the part of the client become worse. Such communication initiated by lawyers will calm down clients and allow them to delay clients’ fears of not knowing what is going happening. Keep in mind that high levels of anxiety sometimes create rigidity and demanding behavior on the part of clients and may make negotiations or working out issues more difficult since the client may feel powerless and take a stand on the wrong issue.
Recommendation #15: Provide a Step-by-Step Checklist for Clients
Most clients that we have worked with through the separation and divorce process have no real idea of the specific legal steps that they will be going through while in this process. As an attorney, you may have handled thousands of cases. But for your client, this is all brand new and he/she is out in the ocean without a life raft when everything initially begins. Providing all clients with a step by step guide with approximate time lines can make the process easier to understand and alleviate a lot of the stress, as well as many questions back to you. Most clients just see this process as a black hole and have no idea where they are heading or how long it will take. It becomes your job to guide them and show them the start process, the middle and the how closure is obtained.
Conclusion
The bottom line is that, in general, all professionals involved in the separation and divorce process need to do a better job as a whole. The reality is that the stress and emotional turmoil that face children through this legal process can be devastating and destructive. But it does not have to be; it really doesn’t. There needs to be a sense of balance. A sense of doing what’s right not just because it betters the client but because it’s fundamentally protecting the best interests of the children. There needs to be accountability on the part of what gets said by parents and about parents. In truth, we could have written many more policy and practice considerations for this article but length of space prevents it. But the message is clear. We hope that all Officers of the Court take the time to process what we have addressed and maybe begin opening up dialog about making the legal system involving separation, divorce and family law a much more psychologically healthy area of law for the children impacted by it.