Spotlight On Family Law: Bill Of Rights For Children Of Divorce

A great article from several months ago by Julie Ross and Judy Corcoran deserves a repost here with proper credit.  They are marriage and family therapists who developed a Bill of Rights of Children of Divorce.  These are very basic tenets that any divorcing parent should follow and something I urge all of my clients – male and female – to bear in mind as they go through the process of dissolving their marriage.

Key points are that children have the absolute right to remain neutral in any post-separation hostility between their parents.  This is especially tough, possibly surprisingly, when the children are a little bit older (11-15 in particular).  By the time they are Tweens kids are grown up enough to have an idea of justice – knowing what’s right and wrong.  It’s part of their mental and emotional development.  Even though they are developing this sense of justice, they only have limited information about what went wrong in their parents’ marriage.  This leads them to take strong positions, often directed at one parent, usually the parent who “left” and can create a divide that can sometimes last for years.  Too often, because both parents are hurting (and I have seen divorces with all stages of emotional nastiness but have never seen one where the parties were not hurting about ending their relationship), the parent with the child “siding” with them will feel some gratification for the support rather than viewing support for them in the same vein as if the support had been “for” the other parent.  Namely, a child choosing sides is a child damaged by the divorce process.

Tweens are the ones generally at the age where choosing a side is an option.  By the time the get deep into their teens, they often could care less except and until the divorce starts impacting their social lives with their friends, younger than the Tween age range, they are often still innocent enough to love both parents unconditionally and without reproach.  Many times I have seen clients bring their Tweens with them to my office because the child is genuinely interested in showing support for one parent or the other and they want to meet the lawyer who is going to help their parent.  I try very hard to discourage this type of behavior because I think it is not healthy for anyone in the situation.

I make it a rule in my divorce practice never to help a parent evade child support obligations – I do this for a reason, I believe that children should never be collateral damage in a divorce and part of my job is to insulate them from bearing the cost of their parents’ difficulties.  By the same token, I let parents know that I will fight aggressively to get them more time with their children – again because I believe it is every child’s right to spend as much time as possible with both parents.   Since child support obligations are based in part on the income differential between parents and the timeshare between parents, fighting for more timeshare is one way of reducing support obligations, but it is not the main goal.  The main goal is to ensure that children spend time as equally as possible with both parents.

Believe it or not, the greatest animosity in most divorces is not the financial part of things.  Virtually everyone who walks in my door knows that in California, community property assets are divided in half and most people have a pretty good idea what their community property assets are before they walk in the door.  Division of assets is not usually that contentious (don’t get me wrong, it’s not a walk in the park either).   The issue from which most other issues arises has to do with the timeshare of each parent with the children.  If we are absolutely honest, the standard 20% timeshare is really not enough for a parent or child to feel like they are living with the noncustodial parent.  It feels like “visiting.”  The visiting parent gets more and more distant from the child’s life the longer the 20% timeshare goes.  As this happens, the child is likely to develop allegiances to the other 80% parent, pushing the 20% even further away.  As allegiances form, the 20% parent feels like an outsider from their own children and possibly as though their ex-spouse is poisoning the children against them.  And you can imagine the downward spiral from there.

In my opinion, most timeshares should try to get to 30-40% assuming a safe living environment in both homes and reasonably adequate means of getting children to and from school.  With that level of timeshare, both parents can feel like they have lots of time with their children and children can genuinely feel like they have a home in both homes.  This ultimately reduces the conflict in divorce case – it’s one thing to break up with your spouse and another thing to lose your home, your spouse, half your assets and your children at the same time.

Of course, lawyers and judges work off “standard plans” and other shorthand ways of resolving legal cases, so in many instances you will end up with the 80-20 split if you cannot come to an agreement with your ex-spouse.  Engaging a lawyer who can work with you and your ex-spouse and ex-spouse’s attorney is a great way of reducing conflict and ultimately saving you not only heartache but also, in the long run, money.  If you are already in the position of having 20% and you want more time, it is really important that you work hard to follow all of the orders in your case, work on your home life, ensure there is a great place for your child to sleep and spend all the time you can with your child.  You or your child will then be in a better position to ask for more time together and you avoid the problem of non-neutrality in children of divorce.

Please give us a call to discuss your case.