Myths and Truths About Working in Family Law Courts
It is important for an evaluator who works in family court to have a clear understanding of what is true and what is not when it comes to work in family law. Your job is to ignore common myths and instead discover the truth. But remember that even these truths are generalizations that may not hold true in all cases. Never forget that each case stands on its own merits and needs to be dealt with accordingly.
MYTH #1: IN THE LONG RUN, A CHILD IS NOT HARMED BY A DIVORCE
Truth #1: Years ago mental health professionals were trained that children, given the passage of time, suffered no lasting effects from divorce. People generally believed that children “snapped out” of any emotional or behavioral problems caused by a divorce. Such beliefs may have relieved the guilt that adults felt for divorcing, but they were untrue. Divorce changes a child’s life forever.
True, some damage done to the child by a divorce may not be severe or debilitating. It may not hinder the child’s ability to move forward positively in life. It may not provoke a chronic mental illness, but even so it never stops affecting the child. Every child suffers when his or her family is broken apart. Numerous studies, some longitudinal, now verify that divorce detrimentally affects children. The effects of divorce last into adulthood for all children. Furthermore, how a child deals with the divorce and the damage that divorce causes is directly related to how the parents handle the divorce itself and how much conflict the child sees between the parents.
Parents want the evaluator to tell them that everything will be all right, both for them and for their children. They want to hear that the divorce, the fighting between the parents, the child’s new life in two homes and as part of two families—that all this will turn out to be a good thing, not something that causes their child harm. A good evaluator, like a good counselor, never lies to his or her client. Things will be different, but not all things will be good—some may well be as bad as or worse than they were before the divorce. Children will carry the scars of the divorce as it affects them throughout their entire lives. The amount of damage the child suffers depends on both parents. Whether the wound heals into a thin scar or remains a gaping, festering wound depends on the people who caused the damage in the first place. The parents who chose to break apart the family also have the responsibility to decide how detrimental the breakup will be to their child.
Certainly there can be good reasons for dissolving a marriage. Remember that it isn’t the evaluator’s job to try to reunite the parents; rather, he or she tries to resolve conflict so that the child can be cared for by two parents who act reasonably and responsibly to coparent. The evaluator’s job is to help the courts issue orders that are in the child’s best interest and that mitigate the damage to the child that is inherent in a divorce.
MYTH #2: MOTHERS ARE USUALLY CONSIDERED THE PRIMARY CAREGIVERS OF THE CHILD AND ARE THEREFORE GENERALLY GRANTED PRIMARY CUSTODY
Truth #2: In the past this was true. Mothers were often automatically assumed to be the child’s primary caregivers and were thus granted primary custody. Fathers were granted only visitation rights, often consisting of alternate weekend visitation. Mothers were viewed as the most important person in a child’s life.
But over the years research has shown that although mothers are important in a child’s life, fathers are equally important. The father’s role is not dismissed in today’s courts. Fathers are as important as mothers: Each child needs a father in his or her life if he or she is to grow positively and become emotionally well-adjusted. The role of the father must be consistent and continuous. Understandably, children are better off and grow up better adjusted emotionally and psychologically when both their parents play a primary role in their lives.
Thus, in today’s family courts, mothers are not automatically granted primary custody. Rather, the court now weighs all the evidence and decides not only who is the primary caregiver, but also which parent can provide the most stability and consistency for the child and which parent is more likely to facilitate coparenting between the two parents. Today, fathers are as likely as mothers to be given primary custody. Shared custody arrangements are also used wherein both parents have approximately equal access to the child in their respective homes. The family court realizes that a man can care for a child just as well as a woman can. Men can do the laundry, cook, clean, and help with homework. Men are no longer viewed as incompetent bystanders when it comes to raising children, but rather as equally competent parents in the child-rearing process. Furthermore, courts recognize that what fathers offer their children is different from what mothers offer, and equally important to a child’s development. Today’s court orders reflect this improved understanding of the father–child bond.
In some cases, men appear to be treated differently from women, but these cases are becoming rarer. More and more orders coming out of family courts recognize the importance of the father, and you also must do the same. A fair and reasonable evaluator does not begin the evaluation with a bias toward or against either parent, but rather believes that both parents have something important to offer the child. In some instances, this assumption may prove to be untrue, but you must start the evaluation without prejudice against either parent and continue until you determine otherwise, if ever.
MYTH #3: BOTH PARENTS IN A CUSTODY BATTLE DESIRE WHAT IS BEST FOR THEIR CHILD
Truth #3: It is true that both parents think that what they want is best for their child. Unfortunately, this generally includes wanting limited or no access to the child by the other parent. Certainly there are cases in which one parent needs to have limited, supervised, or even no access to the child. But these cases are relatively rare.
Often what is really happening is that one or both parents are motivated not by care for their child but rather by a desire to exact revenge on the other parent. An evaluator must always be aware of a parent’s underlying need for revenge regardless of the parent’s words. Many times this need for revenge outweighs the parent’s love for the child, so it is important that the evaluator be cognizant of the parent’s underlying motives.
Sometimes, however, revenge is not the motivating factor—money is. Both parents may want what is best for the child, but also what is best for their wallet. Child support is calculated on the number of overnights a child has with the parent during the year. In some states, guidelines for calculating child support are based on income and overnight percentage. Thus, some parents say they want what is best for the child but actually want to host the majority of overnights in order to get more or pay less child support. An evaluator does not deal with child support figures, but the evaluator does recommend a visitation schedule that is best for the child—without considering whether it is best for a parent’s bank account.
MYTH #4: CHILDREN OF A CERTAIN AGE (GENERALLY AGE 12) CAN DECIDE WHERE THEY WANT TO LIVE AND HOW OFTEN THEY VISIT THE OTHER PARENT
Truth #4: Many people believe that when a child reaches a certain age—generally age 12–14—he or she can then decide his or her own custody and visitation schedule. This is untrue. A child may decide where he or she lives and who he or she visits at age 18 (in some jurisdictions, age 16). It is up to the evaluator to know what the rules are in his or her jurisdiction. However, no child has the right or the responsibility to decide a custody and visitation schedule before reaching adulthood.
Of course the child has a voice in the process, but that voice is not the final word. An evaluator listens to the child and hears what he or she has to say about the breakup of his or her family. The evaluator hears the child’s feelings and is the child’s voice in court. However, that does not mean the evaluator has to agree with everything the child thinks will work best for himself or herself. It does not mean that the evaluator directly asks the child what parent he or she wants to live with or what schedule he or she wishes for visitations with the other parent. When a child tells the evaluator what schedule he or she thinks would work best, the evaluator will ask why the child thinks his or her suggested schedule is best. But even this does not mean the evaluator will go along with what the child says.
It is not good parenting for a parent to allow the child to make decisions that are not his or hers to make. Often evaluators will hear from a certain parent that the child wants to live with him or her or wants to visit the other parent on a certain schedule. The evaluator needs to explore how this conversation started: what the child said, what the parent said, and how the parent handled the situation. It is telling when a parent does not understand that a child is not in a position to make these kinds of decisions but instead abdicates his or her own responsibilities to the child.
There certainly are cases when the child is thinking more clearly than his or her parents; in such a case, the child may well understand how to facilitate his or her own best interests. But generally the child’s decisions focus on keeping one parent happy and trying to squelch the conflict between the parents. The evaluator needs to listen carefully to the child while remembering that these difficult decisions are not the child’s responsibility.
MYTH #5: STEPPARENTS HAVE A SAY IN MATTERS OF CUSTODY AND VISITATION SCHEDULE