In The News

Helping Northern Westchester Families

May 1, 2017BY: Margaret A. Nicholson
IN: Children and Divorce, Collaborative Law, Divorce and Money

Your Divorce Legacy

(Your children need you, not an attorney)

Image of "child custody" word cloud

Why should a child need an attorney?

The phrase “Attorney for the Child” sounds like an oxymoronAn oxymoron is a combination of contradictory or incongruous words. (Source: Merriam-Webster). Why should a child need an attorney? For most people, the attorney-client relationship is a relationship between adults. It is difficult to imagine a child fully grasping principles such as attorney- client privilege or professional responsibility. Why should a child have to?

Unfortunately, should you find yourself embroiled in a child custody proceeding in the context of your divorce, your child may be exposed to these concepts in their most basic terms. An attorney will often be appointed by the judge to represent your children.

Attorneys for Children (AFC)

In the New York court system, attorneys for children used to be referred to as “law guardians”. That title changed when the courts clarified the attorney’s role as the child’s advocate. No longer would attorneys for childrenThe purpose of the Attorneys for Children Program is to provide representation to minors in many kinds of court proceedings (such as juvenile delinquency, custody and visitation, and child protective proceedings. (Source: NYcourts.gov) be permitted to make recommendations to the court as to what they believed was in their client’s best interest.

After speaking to their clients and interviewing all the parties in the case, the attorney for the child is prohibited from substituting his/her judgment regarding questions of custody. What this means is that your child’s lawyer must expressly relay your child’s preference to the court, despite whether or not they agree with it. Only in very limited circumstances do the rules allow the attorney to substitute their own judgment for a child’s expressed preference, and that is in cases where the child’s preference may place them at substantial risk of imminent serious harm.

A few examples of how this can play out come to mind:

  1. “Super Dad” and “Mean Mommy” (and vice versa) – Children are vulnerable during divorce. Stress levels in the household are heightened and everyone is looking for an ally. This is especially so when parents are vying for custody.

    Face of a child

    Children are vulnerable during divorce.

    Often parents play on their children’s affections, becoming the parent that their son/daughter always wanted them to be. A Mom or Dad starts showing up at every soccer game when they used to be too busy at work to attend or a formerly thrifty parent buys their daughter that designer bag she’s been asking for or presents their son with the latest iPhone, under the guise of needing to keep in touch. The enforcer parent, the one who has traditionally been the rule maker in the household, making sure that homework gets done and that the kids get to bed on time suddenly becomes the mean parent. It’s something that lawyers for children hear all the time. “But he never attended her dance practices” or “She always had to work late when it was our time to carpool after lacrosse practice”. Your child only knows that your soon to be ex is taking an interest in them and this can affect their view of who they would prefer to live with.
  2. The “Alienator”Parents are vulnerable during divorce. A parent terrified by the thought of losing custody may resort to alienation, whether overt or through a pattern of manipulation. Children are often “programmed” by a parent through a course of behavior that ends up with the child having an irrational preference for one parent. It can be as simple as scheduling fun events during the other parent’s access time to discourage the child from spending time with that parent or it can be more subtle, such as asking the child to keep secrets from the other parent or “inadvertently” having the child overhear discussions about legal proceedings. The end result is the same; a child begins to feel aligned with one parent.
  3. The “Empowered Child” – Children learn quickly that they can play one parent against the other. Where parents were once united in their decision making, they are now at odds. Children seize on this opportunity to side with one parent in order to get their own way. Many parents are also guilty of giving children a choice regarding spending time with the other parent, instead of “being the parent” and telling the child that they must see their father or mother, and offering words of encouragement for the child and supportive comments about the other parent.

These are just a few examples of how children can be caught in the middle of a divorce. What a judge hears from the attorney for the children may not be a true reflection of a child’s preference but the result of manipulation, alienation or inappropriate empowerment of that child.

Litigated Child Custody Cases are Costly

Image of gavel in pile of money

Costs of litigated custody cases can quickly spiral out of control.

While judges have tools at their disposal to help them decide child custody cases, they are costly. If an attorney for the child is appointed, their legal fees are paid by the child’s parents with a pro rata allocation of fees based upon each parent’s income. While these fees can be reallocated at the end of a divorce proceeding once equitable distribution, maintenance (alimony) and child support issues have been resolved, parents often find themselves struggling not only to pay their own attorney’s fees but also having to borrow money to pay the attorney for the children.

The emotional and financial costs of litigated custodyBoth parties independently hire a lawyer and let the courts decide matters of custody. cases can quickly spiral out of control. A judge may decide that the assistance of a forensic evaluator is necessary (commonly a psychologist or social worker) who prepares a report to the court based upon extensive investigation into the fitness of each parent through interviews with not only the parents and children but possibly also significant others, grandparents and/or other members of the household. The evaluator can be a neutral or parents can hire their own competing evaluator(s). In Westchester County, NY, the initial retainer for a forensic evaluator starts at $7,500 and escalates from there. In addition to these costs, in high conflict divorces, parties often must foot the bill for the following:

  1. Expert witnesses
  2. Therapists for the children and/or parents
  3. Supervised visitation programs
  4. Therapeutic supervised visitation programs
  5. Anger management programs

Collaborative Divorce Offers Parents an Alternative

Man and woman sitting on couch having discussion with third party.

Child specialists can assist parents in formulating parenting plans, taking the unique needs and schedules of the parties and children into account.

Collaborative divorce Collaborative divorce is a solution-oriented approach to resolving disputes. It is a process which seeks to prevent the trauma often experienced by parties in a traditional divorce. (Source: margaretnicholson.com) is child focused, placing the children’s needs first and offering divorcing parents a way to minimize conflict and protect their children. With the assistance and support of team members, such as divorce coaches and child specialists, families receive personalized attention from mental health professionals.

Divorce coaches are trained to facilitate difficult conversations, giving each parent an opportunity to express his or her concerns in a protected setting.

Child specialists can assist parents in formulating parenting plans, taking the unique needs and schedules of the parties and children into account. These professionals offer parents control over their own divorce and help keep the focus on the best interests of the children. Children don’t need lawyers to advocate for them. The collaborative process offers parents the tools to take over this role and work together for the sake of their children.

Parents considering collaborative divorce often voice concerns about the cost of retaining multiple professionals. What they don’t realize is that these professionals offer an invaluable service that can save them money in the long run. They assist the parents and lawyers at meetings by guiding the conversation and minimizing conflict. The team meets only when all parties agree upon an agenda that lays out options and offers the potential for collaborative decision making.

Contrast this process with a traditional litigation. Parties are forced to attend court appearances, whether or not they are prepared to make decisions. Pressured by court deadlines and judges who want to move their court calendars, parties often make split second decisions in the chaotic environment of a court room where a judge may or may not be fully familiar with their case. Even worse, parties can spend several hours in the courthouse waiting for their case to be called and racking up attorneys’ fees, only to appear before a judge who adjourns the case because one side isn’t ready, a report hasn’t been received or the judge has simply run out of time to address the parties’ case because of an overloaded court calendar. Litigants soon find out that judges have little patience for issues that may be important to them but are of little concern to the court.

Image of man and woman sitting across from each other with hands folded.

Studies repeatedly show that children fare better with the involvement of both parents following divorce.

Collaborative divorce offers parents a forum to address their family’s unique needs. They can be creative in formulating parenting plans that work for them, whether that involves accommodating the needs of a special needs child or working out a parental access schedule taking into consideration a parent’s fluctuating work schedule.

The benefits of collaborative divorce in resolving child custody disputes cannot be overstated. Parents are an integral part of the process and are empowered to make choices that truly benefit their children. Studies repeatedly show that children fare better with the involvement of both parents following divorce. They are more emotionally well-adjusted and are more likely to engage in healthy relationships as adults. This is your divorce legacy. What better gift can you give to your child?

The author, Margaret A. Nicholson, is a member of Northern Westchester Collaborative Divorce Professionals which is an association of lawyers, mental health professionals, and financial professionals specializing in the collaborative divorce process. If you have questions about collaborative divorce and how this alternative to courtroom litigation can work for you, please contact Margaret A. Nicholson. Contact information can be found by clicking/tapping the author image or the "View Profile" link on this page.

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