Divorce and The Black Hole of Custody Litigation

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, conciliation. and 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. As when any conflict leads to litigation, the most immediate critical decision is selecting the right attorney. The Court chooses for the child her/his own legal representation through a Law Guardian. The cast of characters widens exponentially with forensic evaluators and various mental health professionals that may be involved as well. 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.’

The good news in the custody field is that many of the terrible flaws of the system are being actively addressed by professionals of all kinds and at all levels. It is in fact viewed as a critical problem throughout most states in the country: Court reform is slowly underway.