Although all parents would acknowledge that their children’s interests are best served when the parents get along, many fail to cooperate regularly. Some legitimate disagreements are expected since if the parents got along well in the first place, their relationship would probably still be intact. However, many separated parents repeatedly disagree over issues large and small, resulting in constant court battles and disruption to the children. These disagreements may arise from leftover bitterness, or bitterness, new step-parents, financial disputes, poor communication, and sometimes simply selfishness or poor parenting. In some cases, one parent may suffer from mental illness, which makes resolution of the issues far more difficult. Even if the disputes do not end up in court, constantly dealing with an uncooperative parent is mentally exhausting. Clients often look to their family lawyer to resolve these disputes. Not all disputes can be resolved through legal action. But a family lawyer can help identify issues before they arise and draft an order offering groundrules for disputes.
Certainly, if one parent suffers from mental illness, it is vitally important to determine how the children’s health and welfare is best protected. But if the disputes are due more to poor communication or selfishness, careful legal drafting could clearly resolve or even avoid problems. One means is to provide for mediation or arbitration by a neutral non-party. The mediator need not be a lawyer or judge. I have drafted agreements that allow family members, friends, and counselors to resolve disputes outside of court, and these methods often work well. Another means is to provide one parent with the authority to make the final decision in the event of a disagreement (known as joint custody with impasse decision-making authority). An order could state that the parent who files an unsuccessful legal action, or fails to follow a court order, on child-related issues, must pay the other’s attorneys fees. Still another option is to identify areas of disagreement and specify in advance how they will be resolved (for example, what happens if both parents try to schedule a vacation with the child at the same time). The options are generally limited only by the parties’ specific disputes and the lawyer’s imagination and drafting skill.
However, not every problem can or should be resolved by the legal system. Separated parents will not always agree, and a certain amount of dispute and antagonism should be expected. It is usually unwise (and expensive) to seek legal help for every issue. A parent would probably only wind up disappointed and exhausted with the system, not to mention involve the children in unnecessary conflict. If a parent is constantly before a judge on minor issues, they may face some skepticism when they seek help with an important one. In general, parents should be willing to accept the occasional indignity, unkind word, or failure to cooperate in order to keep the peace and keep the children out of disputes. Each parent will know when the disagreement is important or repeated enough that legal help becomes necessary. At that point, it is best to seek the assistance of a lawyer experienced in divorce, paternity, and child-related issues to (a) decide if legal action would be helpful and (b) if so, how to resolve the issue.
- The Questions of Estate Planning, Part 6: Why - January 6, 2020
- The Questions of Estate Planning, Part 5: How - January 2, 2020
- The Questions of Estate Planning, Part 4: Where - December 30, 2019
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