Common Problems

In a marriage with children, regardless of their ages, the impact of a divorce on their physical, emotional, and economic well-being is often a matter of great concern. The following section can hopefully provide a framework of information and support for addressing these important concerns.

There is little question that children want (and it is almost always in their best interest to have) two parents. This far outweighs any concern children might have about the qualities of those parents. In fact, children will typically show an irrational preference for a natural parent, even one who treats them badly, over a substitute parent who treats them with love and respect.

Next, as every parent has observed, it is important to understand that children are naturally equipped to be skillful manipulators of their parents. One of their basic techniques is to pit one parent against the other. The objective is to create a space where the child can get what he or she wants. While the child looks to exploit the conflict between the parents, the child does not want to cause a split between the parents. So, it comes as no surprise that when a split occurs, the child may assume that he or she is responsible. The child’s response to feelings of guilt is typically to try and pull the family back together. Often there is a parallel behavior to this in parents. The love a child expresses for a parent who treats them badly, and the efforts of the child to heal a broken marriage, often lead to parent frustration. ‘Why can’t my child see the defects in my spouse that make me want to seek a divorce, even when those defects affect my child?’

One common parental strategy in this situation is to attempt to explain to the child the other parent’s flaws and defects. ‘Your daddy is a bad man.’ Beyond that, the parent sometimes seeks to make the child a confidant, or an ally in the struggle for acceptance of the parent’s rationale for wanting a divorce. The outcome is predictable. The child may decide that rather than risk the loss of affection of both parents, it is better to side with one over the other. Or equally as often, the child may decide to continue to try to fix the situation that threatens his or her stability, and defend whichever parent is being criticized.

Even worse than when one spouse tries to make the child a confidant or ally, is when both parents compete for the support of the child with their position in the marriage break-up. This can lead to the division of children into different camps, or a form of child rule of the household as the parents compete with each other for the support of the child.

If these are the problems, what are the solutions? First, if you can’t agree with your spouse about anything else, agree that you will not make your divorce a contest where the children are asked to choose up sides.

Next, honor that agreement. You should treat the issues of your marriage’s break-up with the same discretion that you treat the intimacies of your sexual relationship with your spouse. It just isn’t any of the children’s business.

This is not to say that one should keep a fact of the break-up a secret - as if that were possible. Children aren’t stupid. They will see the change, even if it is a change from frequent battles, to an icy distancing of one from the other. You can confirm what they already see, ‘Mommy and Daddy are having problems.’ The question that follows will be, ‘What kind of problems?’ To which the right answer is, ‘They don’t concern you, darling. Mommy and Daddy will make sure that our problems don’t become your problems. You are safe, and we love you.’ This message will require frequent reinforcement. This is the right message, even if the kids are an issue in the break-up. There is a movement to recognize the right of children, particularly in a divorce. To view a proposed Children’s Bill of Rights go to http://www.gocrc.com/rights.html

It is good to be able to tell the children that, ‘Mommy and Daddy are seeing someone who is trying to help us work through our problems.’ This is not only a good thing to say, it is a good thing to do. It is a good thing to do because, every relationship is the product of two people’s skills and understanding. When a relationship fails, both parties have responsibility to one degree or another. If there is any possibility of your entering into another relationship after this one, you should take advantage of the opportunity provided by counseling to gain the skills and insight you will need to give the next relationship the best possible opportunity for success - and that will be good for your children. If you’re in a divorce and getting counseling, and even if you’re not, it’s a good thing to give the children an opportunity to talk with a skilled, uninvolved adult about what they are feeling and experiencing. This might be a psychologist, or marriage and family counselor, a clergy-person, there might be a group led by a counselor of youngsters going through the same experience. Children will be hurt, angry, frightened, defending and/or attacking other members of the family, regardless of their age, and they need outside help in dealing with the complex issues divorce presents.

If you and your spouse were communicating well, chances are, you would not be looking for a divorce. Still, the fact is you are both going to be the parents of your children for as long as you live. Your children need consistent sources of good information to aid them throughout their lives. You and your spouse need to be able to communicate with one another, now and into the future, about the issues and circumstances that affect your children. You and your spouse need to develop strategies and techniques for communicating and coordinating your message when dealing with the issues and events of your children.

Chances are good your children will have occasions for celebrations, graduations, weddings, the birth of children (your grandchildren), etc. You will need to have built the ability to handle those child centered events as your child’s parents, not as combatants in a long-over war. Parents who can’t put the interests of the children ahead of their enmity toward their former spouse become a burden to their children rather than a blessing. If you are not communicating effectively and freely about your children with your spouse (current or ex) you are giving your child(ren) the opportunity to manipulate you and your spouse - and that is never a good idea.

In a divorce, children are of concern in two major areas, how will possession (custody and visitation) of the children be shared, and how will the financial needs associated with raising the children be met.

Custody is a broader concept than simply where the child lives. The Courts divide custody into two parts: legal custody, and physical or residential custody. If you are interested in a change to existing custody arrangements see: Child Custody & Visitation Proceedings. Legal custody may be given to one parent or be shared jointly by the parents. Where both parents seek to be actively involved in the children’s upbringing, and are able to work together in the interests of the children, parents may share legal custody. This means the parents share the responsibility and authority for making decisions about the children’s education, medical care, social services and the like. It means that both parents have full rights to the child’s medical and educational records, and shared participation in the decision making concerning the children’s health care and education. Legal custody has nothing to do with where the child lives.

Residential, or Physical Custody is about where the children reside a majority of the time. The custodial parent is the one with the day-to-day responsibility for the children. The arrangements concerning physical custody can be complex. As more and more parents work to maintain an active, daily involvement in their children’s lives, joint parenting and joint residential custody arrangements are becoming more common. Parents have even tried taking turns moving in and out of the home where the child is in permanent residence, although that is not the norm. Historically, mothers were routinely awarded residential custody of the children. The belief being that as mothers they were naturally (by nature) better equipped to provide parenting. While the law has become gender neutral, mothers still have a degree of advantage in being awarded residential custody, especially where the father has not been actively involved in caring for and parenting the child, although the gap shows signs of narrowing.

The parent who does not have residential custody often feels at a disadvantage in parenting. What happens if the parent with residential custody wants to relocate within the state, or move to another state? The parties may agree on limitations on relocation, or the Court may require a hearing or otherwise limit the parent’s ability to relocate. The parties may also agree, or the Court may order, opportunities for each of the parents to communicate with the children when they are in the care of the other parent. Such communications should be limited to and focused on the child and not on the activities and circumstances of the other parent.

Visitation is the compliment to custody. The whole of parenting time is divided between the time spent with the custodial parent and the time spent the parent who has visitation. Therefore, the objective should be to address physical custody and visitation as a single area of concern. Both of these topics should be approached from the standpoint of what is in ‘the best interest of the child’. Remember at the outset we said the best interest of the child, except in extraordinary circumstances is to have two parents who care for and love him or her (see Child Custody and Visitation Proceedings). Visitation schedules can vary from none, to half of all weekends plus holidays and school vacations, to literally half of each week. For example I have a case where the mother has custody of the children, but the father’s visitation is every Monday through Thursday. As a practical matter visitation should take into consideration, work schedules, physical proximity of the two parent’s residences, school location, extra-curricular activities, friends, family and interests, all with a view toward the children’s best interest. That said, if the matter cannot be decided by the parents, and the Court is left to decide, the tendency is to leave younger children with their mother, and to involve and consider the wishes of older children in making custody determinations about who has physical custody of them and what visitation is provided.

It would be nice if visitation were simply a reflection of the parent’s interest and commitment to raising the children. However, in New York, child support goes to the parent who has residential custody of the child(ren), i.e., the parent who lives with the children most of the time, and the amount of child support is determined by the number of children and the relative earnings of the two parents. The amounts determined by a statutory formula can be varied under specific circumstances. Therefore, custody positions often appear influenced by the desire to get child support or the desire to avoid paying child support, instead of on the children themselves.

Aside from the child support implications, considerations in setting up a visitation schedule include, the age and independent activities of the child, the physical distance of the visiting parent from the custodial parent - longer distance equates with fewer visits of longer duration, the demands of school attendance, different family celebrations and traditions, fairness to all the parties, and any special needs and considerations of the parties. The complement of custody is visitation.

The sad fact is that typically the non-custodial parent who wants to be a full partner in parenting his or her children, is at a handicap. Once school days are removed there is little left beside a share of school vacations, every other weekend and a share of holidays for the non-custodial parent to spend with his or her child(ren). The parents are free to make pretty much any arrangement that they find mutually satisfactory, but if they can’t work that out, the custodial parent has a definite advantage in terms of the available time for parenting.

If you’re the parent who has visitation. Use it. If you aren’t able to use it, or you’re going to be late, call, as soon as you know you won’t be there at the expected time to start your visitation. Remember you are a parent. If you were the custodial parent you would have to figure out a way to be there when your child was home. No excuses. It should’t be different just because you are visiting.

Child Support

Whatever the status of your relationship with the children’s other parent; married, separated, divorced, or never married, the law provides that both parents are responsible for providing for the financial support of their children.

Maintenance & Support/Modification

The Court may consider many factors in varying the child support obligations of each of the parents, but the Child Support Standards call for child support of one (1) child to be 17% of the combined parental income (less FICA). For two (2) children, 25%, for three children, 29%, for four (4) children, 31%, and for five (5) or more children, at least 35%.

Each party’s share of the support obligation is equal to their percentage of the combined parental income, and the payment is typically made by the non-custodial parent to the custodial parent (the parent with whom the child has his or her primary residence). The many individual variables the Court may consider in determining the support obligations of each of the parents make this a complex area of practice despite the convenience of a formula.

In most cases the Court will order child support payments to be made through the Support Collection Unit, which will receive payment directly from an employer and process it through to the custodial parent. Once the child support obligation is determined by the Court, it will remain in place for a minimum of three (3) years, unless there is a significant change in circumstances affecting the cost of supporting one or more of the children. In no event will the Court order adjustments (upward or downward) in child support from a date prior to the filing of a request for a change.

Child support obligations continue until the child is emancipated, i.e., lives independently outside the household of his or her parents, or turns 21. The Court may extend the support obligation for a longer period if the child is in college or has special needs. Child support does not terminate on its own. You have to make application to have it terminated and to terminate any wage deductions for that purpose.

Nobody said parenting was going to be easy. Divorce is an added trauma for all concerned. Adding to this the loss of control that results when it is the judge rather than the parties themselves making these key decisions, and the emotional price can be great for everyone. The best solutions, the solutions with the lowest emotional cost, the greatest permanency, and the best fit for the parties, are those made by the parties themselves with the aid and counsel of their attorneys and other professionals working together to find the best results. While this can, and should, be a part of every divorce, I offer Collaborative Divorce services which focus on client control of outcomes that fairly and fully address everyone’s issues and needs. Whether these child related issues are being dealt with separately in Family Court, or as part of a divorce/separation process in Supreme Court, chances are you need a lawyer to help you develop a strategy and negotiate a resolution from the complex range of alternatives, tradeoffs and options.