Within the last decade in matrimonial law, there have been rapid changes in developing options for conflict resolution that avoid protracted and bitter battle between divorcing adults. Three of these options are mediation, collaborative divorce*, and occasionally arbitration. If there are underage children in the family the decisions become much more complicated and most parents struggle to balance what they believe to be the needs of each child with their own needs and priorities. The period of ambiguity when there is so much uncertainty how the conflict will play out, and how all the pieces will fall into place, creates an enormous amount of anxiety for parents and children and, usually, their extended families as well.

Most people considering or planning divorce come to the task with a complicated and often painful mixture of feelings, memories, circumstances, and anxiety about the future. In addition to the normal stresses involved, these changes may also become associated subconsciously with earlier difficult life experiences, only complicating and delaying the person’s adjustment to the ending of the marriage.

For example, many people feel especially vulnerable around such concerns as

   . separation and loss regarding important people in their lives

   . anxiety relating to the impact of their own parents’ divorce

   . the complex psychological meanings of money

   . paralysis in making decisions

   . stress from discovering a spouse’s ‘dark side’

   . survival under adverse circumstances such as neglect or abuse in childhood

In the course of maturation we all learn the inevitable that “life is what happens when you’ve made other plans.” How we respond to these changes, how we make our decisions, how we adjust to decisions that are made for us, and how we balance our concerns for the needs of our children with our own, will seriously impact us and others for the rest of our lives.

However when attempts at conflict resolution fail, or appear to be impossible in the first place, the legal system becomes the battlefield, inevitably increasing the financial and emotional costs to the parents by many times, and putting the children’s lives ‘on hold’ indefinitely. To litigators “time is money” but to children time is unending despair. A parent’s most immediate critical decision is selecting the right attorney – or disengaging from the wrong one. If clients have questions about their legal representation, they can always request a consultation with another attorney, essentially a second opinion.

The Court often assigns the child her/his own legal representation through what is now called Attorney for the Child (AC). However the AC’s sense of responsibility to the child (allowing the child a “voice” -- and knowing the appropriate questions to ask) varies enormously. There is a good deal of confusion about the parameters of the AC’s function, which should be limited to (1) providing the child only legal representation and (2) conveying the child’s wishes, regardless of the AC’s own views, to the judge who makes the final decision. Unfortunately no formal guidelines or standards for ACs have been established. The cast of characters widens exponentially with forensic evaluators and various mental health professionals, clergy, teachers, relatives, etc. that may be involved as well.

In order for the court to reach the “least damaging” decisions (if that is a judge’s intention), the competence, values, biases, and understanding of children of each professional involved, including the judge, will make or break the outcome for all involved, especially for the children. Once custody litigation begins, usually ‘there is no going back.’ However one of my interests is in consulting with parents headed for litigation but who may, after working through some of the psychological barriers, be amenable to shifting to a collaborative format. This is by far less costly in time and money. Legally the parents are entitled to make this shift if they can agree to do so, however they should be aware that it may be resisted by their respective attorneys who are intent on litigating.

From the mental health perspective, problems needing more careful scrutiny include formulaic thinking (e.g. anything children say has likely been manipulated by one of the parents, children are too young to “have a voice”; parents “just need some lessons” in anger management or rehabilitation for chronic substance abuse). There is also the problem that some litigators try to use the other parent’s treatment history to justify denying custody. Attorneys frequently tell clients they cannot be in psychological treatment at all during the litigation process. Allegations of a partner’s “abuse”, reports to Child Protective Services, etc. may or may not be warranted or based on actual events.

Since, for the most part, the bottom line in custody litigation is “who to believe”, there is a common and insidious ‘syndrome’, which attorneys, judges, and even forensic evaluators are not trained to recognize, is that of the parent with psychopathic traits (e.g. gross forms of manipulation, deception, pathological lying) whose real agenda is not the welfare of the child but the ongoing pleasure of thwarting and torturing the other parent. Another common problem is that of immigrant parents who, largely because of their original culture and education, are naïve and utterly unequipped to deal with the American legal system. Women whose culture has confined them to traditional home-bound functions have little or no access to financial resources to help them survive, take care of their children, or hire competent legal representation. Also there is a disturbing paucity of attorneys willing to take on pro bono work, even in the final stages of litigation when their client has gone into considerable debt. Because of the threat of being subpoenaed, there is also an understandable paucity of mental health professionals willing to treat people in any litigation. In any event, these issues are part of a growing trend for professionals in many fields to move toward collaboration in establishing more humane practices.

I have evolved my own model for working psychotherapeutically with adolescents and adults involved in custody litigation. I clarify from the beginning that I provide only psychotherapy and will not testify in court. I ask them to sign a contract to this effect and to give it to their lawyer. This is because – in my view --any threat to the confidentiality of the person’s treatment automatically changes and impairs the kind of treatment I practice.

However with my client’s consent, I can share information with the forensic evaluator and even with an attorney, for instance the Attorney for the Child, if I have serious concerns about the child they are representing. Also, if I am treating a parent, I let them know at the outset that the needs of the child, if I have reason to believe the child is at great risk, will become an active part of the work I do with the parent as we consider any actions that need to be taken on the child’s behalf. (This would be regardless of whether the circumstances meet the full criteria for mandated reporting.)

While my treatment of the litigating parent is interactive and focused, it also explores and integrates the earlier roots of the feelings and behaviors that have left them “stuck.” I work with litigating parents in both my Irvington and White Plains offices.

*Collaborative divorce is a form of divorce negotiation through which, as in mediation, the parties agree not to litigate.  Rather than having one individual serving as mediator, the parties and their respective attorneys meet together to negotiate the terms of the divorce. Increasingly collaborative divorce is expanding into a team approach involving the attorneys, financial consultants, parenting coaches or coordinators, and child consultants (usually mental health professionals).