The attorney’s role is to look out for the best interests of her client. But what are the best interests of the client? One client may seek out an attorney who will help her settle her divorce with fairness and justice for both parties. Another client may come to an attorney seeking to take everything she can get financially and materially from the spouse. If the attorney sees the best interests of his client as handling the divorce in exactly the way the client wishes to have it handled, the lawyer may strive to be fair or may fight ruthlessly for everything the client wants. And he may take either approach with little regard for the potential impact on the children.
Some clients tell their attorneys that their children are complaining that they don’t like the other parent and that the child shouldn’t be separated from the parent who is in the lawyer’s office. This parent may be seeking validation for this point of view, and the attorney may buy into the need to validate these complaints in the interest of respecting the child’s feelings. Furthermore, what a client sees as being in her best interests may well be short-sighted or patently inadvisable for the children.
Co-parents who wish to take full physical custody, restrict the other parent’s parenting time, or demand an unreasonable amount of child support may be reacting based on their emotional needs — not on what is objectively best for the children.
While many attorneys will let their clients know that their demands are unreasonable, there are others who are less concerned about the children and are more concerned with accommodating the angry parent-client.
The Aggressive Attorney and the Passive Client
June was a middle-aged, stay-at-home mother who, since the kids had been born, had only worked part time at the school. She and Walt had few fights or arguments during the marriage, and their friends truly expected that June and Walt would always be together. However, one day Walt told June that he had been unhappy for a long time and couldn’t go on being married. June was very surprised as she never suspected Walt would ever wish to end their marriage.
When June entered the attorney’s office she was frightened, confused, and depressed over the upheaval in her life. A friend had referred her to the attorney and she didn’t know what to expect. She wanted someone to take charge and her attorney, Sheldon, did exactly that.
Sheldon directed June to go home and take pictures of their possessions, get their financial information without telling her husband, and document anything inappropriate her husband did or said to her or the children. Walt came home from work while June was still taking photographs, and they had their first fight.
After the fight, June documented his inappropriate behaviour during the argument for her attorney. The divorce quickly became ugly, despite the fact that Walt and June were sensible, bright, and well-intentioned people.
This is a scenario where a client goes to an attorney looking for guidance and believing that the expert knows the best way to proceed. A passive individual may put little thought into what kind of attorney she would like and may not even be aware of how different attorneys approach divorce. An aggressive, take-charge attorney can set the stage for a long court battle. Sheldon sent June home to behave as though her husband was untrustworthy and told her to look for inappropriate behavior. As often happens, what we look for is what we’ll find. If June had been encouraged to be reasonable and fair and sit down with her husband in an effort to work things out, it’s possible there would have been less conflict and less money spent on lawyers, leaving greater harmony and more resources for the family.
Can Lawyers Help to Reduce Conflict?
Many experts in the legal system agree that lawyers can take a proactive role in reducing conflict between disputing parents (Wingspread Conference Report, 2001). In order to minimize the conflict in divorces, attorneys can use their counseling function in assisting clients of divorce to avoid inappropriate conflict, particularly related to custody issues.
When Jolene had her first appointment with an attorney, she was angry and admittedly was looking for ways to hurt her husband.
The attorney, however, discussed with her the negative consequences of a custody dispute on their three children. He strongly advised her to work at settling their conflicts in the least damaging ways in order to protect their children.
Lawyers can, as early as the first appointment, discuss the alternatives to litigation, such as mediation, counseling, divorce classes, or collaborative law. Instead of promoting conflict, attorneys can be well versed in ways to avoid conflict and can communicate this knowledge to their clients. They can also make every effort to identify those couples who are likely to become entrenched in high conflict and encourage these individuals to avail themselves of the resources for settling disputes outside of the courtroom and the legal process.
In some states and jurisdictions, an alternative process for resolving co-parent conflicts has been gaining support since the mid-1990s. Called collaborative law, the goal is to eliminate litigation in family matters. The co-parenting couple, as well as their attorneys (who must be trained in this alternative approach), commit to the process and agree they will not litigate to solve their issues. They enter a contract that establishes the most unique aspect of collaborative law: if the collaborative process terminates, the same attorneys can no longer represent their clients. If the collaborative law process breaks down, the couple can try to resolve their problems by litigating — if they choose. If they do, however, new attorneys must be hired to file motions or appear with the co-parent in court. Like mediation, the information learned in collaborative law is deemed to be confidential and cannot be used in any future litigation. The withdrawal option is rarely used because the disqualification of attorneys and information is a significant disincentive.
In collaborative law, the majority of negotiations take place among the couple and their attorneys at four-way meetings. The attorneys utilize many approaches to resolving conflict, including interdisciplinary teams that include therapists, child specialists, and financial advisors, who act as advisors, neutrals, and specialists in resolving issues (Lande, 2003).
The Court and Judges
Like attorneys, judges have a role to play in either promoting conflict or reducing conflict during a divorce. For better or worse, judges are part of the adversarial system. This system, as some legal experts have pointed out (Elrod, 2004), is not suited to deal well with the complexities of interpersonal relations when divorcing couples with children are involved.
Judges who are untrained in the dynamics of divorce or child development may make assumptions that have no basis in fact. For instance, judges faced with a high-conflict divorce couple may assume that either or both co-parents are unduly adversarial and fail to make decisions that protect the present or future adjustment of the children. A family court judge may simply tell a couple to settle their differences before coming into her courtroom in the future.
However, a judge who sees protecting the children as a high priority may order a couple to seek guidance from a counselor or a program designed to help ensure that the issues over which they have been squabbling are indeed settled before a return to court.
Furthermore, judges may assume that allegations made about the other co-parent are true and may issue tough protective orders that end up damaging relationships between parents and children (Weinstein, 1997).
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