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n my experience with divorce both on a professional and personal level, I have had the opportunity to reflect from multiple perspectives on how the process affects children, and what family law attorneys can do to improve the outcomes for children, and ultimately society. This article focuses on these issues.
Kids want parents to know they can handle the truth of the situation.
1970s-Today As divorce has become more common and accepted, legislation changed and the no-fault divorce was introduced. Society has begun to view divorce in a more positive light, thus viewing children of divorce differently.3 As a result, instead of divorce being taboo and frowned upon, people now view divorce as a second chance to be happy. Instead of being considered lost causes, children of divorce can now be seen as resilient and able to cope.4
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176 AMERICAN JOURNAL OF FAMILY LAW are not such a positive thing anymore. Kids also wanted their parents to know that, simply, they can handle the truth of the situation. Sometimes it breaks them apart but other times they are okay with it since they realize that its better for both parents if they just get a divorce.7 Thus, researchers concluded that parents should constantly keep kids aware of whats going on because otherwise children feel neglected and disrespected. Children also stated that, They are saddened that they cannot have peace in their household, especially because generally there is nothing they can do to help the situation and They wish things could go back to the way they were. They are more affected than even they realize. They need to know its not their fault.8 together during a critical time for their family. Opposing parties are often advised by their attorney to cease communication and cooperation efforts and focus on their own needs rather than what is best for their children. Experts have identified five potential sources of stress for children when their parents litigate over them including: parents involving the child in inter-parental conflict, parent-child role reversals, living in a situation where the child and parent have little control over the legal events, confusion resulting from parents changed view of reality, and disillusionment over the childs family and its values.13
Risk Factors
Research indicates that the majority of children who are products of divorce do not, per se, have long term effects and usually fall within the average range of psychological and social adjustment following divorce.14 However, the way the parents handle the divorce could put the children at risk for significant long-term effects. Divorces that include high inter-parental conflict, diminished support and contact with one or both parents and loss of economic resources are indicators that parents may be putting a child at risk.15 The number one risk factor is the level and intensity of parental conflict prior, during, and after the divorce. More specifically inter-parental conflict concerning child-related issues, such as custody, child support, and child rearing practices have been closely associated with child adjustment problems.16 For each family a high-conflict divorce has a different meaning. However, researchers have compiled a list of factors that may help identify a high-conflict divorce. The factors include criminal convictions, involvement of child welfare agencies in the dispute, several or frequent changes in lawyers, frequent court hearings, the overall length of time it takes for the case to settle, and a history of contact or timesharing denial.17
One result that shocked the group was that more than three-quarters of teens believed that mothers and fathers are equally qualified to care for teens after a divorce. Slightly fewer teens felt that both parents are equally qualified to care for young children after a divorce.9 When asked about parent arguing fifty percent (50%) of teens said that it is terrible. When asked what arguing meant to them, thirty-nine percent (39%) said that it was Disagreeing about things and 26 percent said it was Criticizing the other parent. Less than 35 percent said that arguing included screaming, hitting, or throwing stuff.10 Dr. Robert Gordon concluded by saying Clearly, children are more deeply bothered by parent conflict than most adults think. While very few adults would scream, hit or throw things at their spouses, most married couples would admit that they at least occasionally disagree and criticize each other in front of their children. Id like to think that these survey results would make them think twice about that.11
POTENTIAL EFFECTS FOR CHILDREN THE CONTENTIOUS NATURE OF LITIGATION BASED DIVORCES
In an adversarial context whether it is a lawsuit or a divorce there is always a winner and a loser.12 This winner-loser attitude forces parents to focus on each others weaknesses instead of working Studies have found that the effects of chronic conflict on children lead to feelings of chronic stress, insecurity, and agitation; shame, self-blame, and guilt; a chronic sense of helplessness; fears for their own physical safety; a sense of rejection, neglect, unresponsiveness, and lack of interest in the well being.18 Researchers have also found the
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effect of high-conflict divorce on children roughly doubles the rate of behavioral and emotional adjustment problems. These children may also have a tendency toward lower rates of education, early marriage, living together before marriage, and a group of behaviors which can be described as: lower commitment to marriage, infidelity, problems with anger management, feelings of insecurity, neediness, demandingness, denial and blame, contempt, and poor conflict resolution skills, higher levels of depression, and more problems with peers.19
Studies have also compared the effect of divorce on boys and girls as separate groups. The effect on boys appeared more immediate and dramatic. Boys were found to be prone to aggression, disruption, acting-out behaviors, and developmentally vulnerable. Girls, however, tend to show the effects less immediately and over time and culminating in a range of negative behaviors in adolescence. During adolescence girls show an increased rate of running away, skipping school, sexual promiscuity, and acting out.20 Dr. Paul R. Amato of Pennsylvania State University has found through his research that compared with other children, those who grow up in stable, two-parent families have a higher standard of living, receive more effective parenting, experience more cooperative co-parenting, are emotionally closer to both parents, and are subjected to fewer stressful events and circumstances.21 Dr. Amato also finds that interventions that increase the number of children who grow up with both parents would improve the overall well-being of U.S. children but only modestly, because a childs emotional or social problems have many causes, of which divorce is but one. However, even a small decline in divorce percentages, when accounting for all of the children in the population, would substantially benefit society.22
divorce and maladjustment in adulthood.23 Another study of divorce, by Dr. Amato and Dr. Danelle D. DeBoer, has observed over 2,000 married individuals and 335 of their children who also married during a 17 year study period. They discovered that divorces were more common among children whose parents had divorced than among those whose parents stayed married.24 They simplified a childs perspective of divorce in two ways. Children either learn that divorce is a reasonable solution to an unhappy marriage if the divorce is preceded by a long period of chronic and overt discord, or if there is little conflict, children learn that marriage is an unpredictable relationship and that love and commitment are often here today and gone tomorrow.25 Dr. Amato went on to say that though he believes adult children of divorce have a tendency to jettison relationships that may be salvageable, growing up in a divorced family does not doom a person to have an unsuccessful marriage. Adults with divorced parents may just have to work a little harder to keep their marriages strong.26
178 AMERICAN JOURNAL OF FAMILY LAW parents remain hopeful that one day their parents will take control of raising them. When children are angry, rebellious, or destructive from an early age, they are often wishing that their parents will be strong and confident in their role as an authority figure. The long term effects of impaired parenting can be devastating. Children who are victims of impaired parents often have a hard time leaving home, hold grudges against their parents, have difficulty carrying through with goals, and lack a strong sense of personal responsibility. Examples of overt alienation include statements by the alienating parent about the target parent that are delusional or false, inclusion of the children as victims of the target parents bad behavior, overt criticism of the target parent, and requiring the children to keep secrets. Lastly, in cases of severe alienation, the alienating parent no longer needs to be active as the hatred and disdain are overt. The alienating parent will do anything to keep the children away from the target parent. The child takes on the alienating parents desires, emotion and hatred and is no longer able to remember any positive feelings for the target parent.31 Prevention of this phenomenon is through education of those working closely with the parents. Attorneys and judges are the front line professionals in most custody battles.32 If not addressed, parental alienation syndrome can complicate rulings on divorce proceedings. The alienating parent is often unaware that his or her actions may actually jeopardize his/her custody rights. Parental alienation syndrome has been recognized as a scientifically accepted phenomenon in federal and state courts for the admissibility of scientific evidence. In some states, the court has placed the child with the target parent, finding that the alienation on the part of the other parent was detrimental to the childs well-being. It is the duty of the attorney and the judge to help the alienating parent/client see through the immediate pain and anger and understand how decisions they make now will have an impact on their loved ones in the future. Though it is not an easy task, they must differentiate between the real issues and the volatile emotions of divorce to protect the well-being of the child(ren) and the interests of the client.33
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actually dropped following parental divorce for kids living in highly dysfunctional families.35 Fellow divorce researcher and psychologist, Dr. Judith Primavera, also adds that parents who do not fight but subject their children to an unhappy marriage by having little to do with each other also cause emotional harm to their children. She believes that children can see when there is no longer a connection between their parents and staying married is no longer beneficial to them as they learn about relationships through observation.36
COLLABORATIVE ALTERNATIVES
Mediation is a popular tool used to help divorcing couples resolve the problems of divorce with a neutral professional managing the negotiation process.39 Mediation aims to create open communication and reduce conflict. A study of a court-based mediation found that cases randomly assigned to mediation versus typical litigation were seven times less likely to go to court and even when mediation did not end in settlement, many parents eventually settled outside of the court room.40 Over the years the effect of mediation and family relationships was also studied. Researchers found that initially there was no difference between parents who went through mediation and those who went through the adversary process. However, a twelve year follow-up study found significant differences between the two groups. Those who went through mediation had increased parental contact. The contact did not increase parental disputes despite more existing opportunities for it. Parents reported being more likely to discuss problems with one another and offer support, and the nonresidential parent had a greater influence on childrearing decisions.41
Experts have found that successful mediation often includes promoting cooperation and the education of parents concerning their own emotions and those of their children.42 Another alternative to the litigation process is a collaborative practice.43 Collaborative practice is a team approach that includes lawyers, divorce coaches, child specialists, and financial experts trained in mediation. The financial specialist helps assess current and future costs and estimates values of property for division between the parties for settlement. The divorce coach remains a neutral party and focuses on assisting the parents through the range of emotions, tough discussions, and conflict resolution. The child specialist also remains neutral as he/she represents and advocates for the best interest of the child. Initially, the parties must sign an agreement not to go to court and in the event that an agreement is not reached they must find new trial attorneys. The goal is to provide a civilized process, produce outcomes which meet the needs of all parties, minimize cost, and increase clients control, privacy, and compliance with the agreements reached.44 Collaborative divorce cases are also beneficial when dealing with chemically dependent clients. Clients with addictions are often scared that by admitting their problem they will lose parental rights. However, in a collaborative practice the goal is for the parents to work together towards a healthy environment where both parents are healthy and play a meaningful role their childrens lives. The team begins by identifying the issue and referring the parent to a mental health specialist to assess the severity of the addiction. Once an assessment is done the team works with the specialists to choose the appropriate treatment plan. In the interim, if a parent is still abusing drugs or alcohol, the team works to create a temporary safety plan to provide for contingencies. Once a plan is established, the child specialist will advise the coaches and parents as to the best approach for informing the child(ren). This is a benefit of a collaborative divorce. A personalized plan is created by a team of experts who help the family navigate through a difficult process.
180 AMERICAN JOURNAL OF FAMILY LAW most important things divorcing parents can do is to educate themselves and understand how their actions along with the animosity they exhibit toward the other parent impacts their children in negative and destructive ways.46 Increased awareness of the problems experienced by children of divorce has led to interventions focused on three goals: the development of appropriate coping skills; the establishment of an understanding, supportive environment; and the enhancement of self- and family perceptions.47 interventions provide many opportunities for parents to settle disputes cooperatively with one another before, during and after the legal divorce process in order to reduce conflict, allow them to exit the legal system sooner and leave the parties with fewer expenses.53 Some jurisdictions have implemented parent focused divorce education programs. Participants are encouraged to attend these classes early so that their children do not suffer needlessly from inter-parental conflict. Such programs encourage parents to remain attached to their children even though their marriage is ending. The focus of the programs is on (1) informing parents how children usually respond to divorce, (2) alerting parents to the negative effect of conflict and their harmful behaviors on childrens adjustment both in the short and long term, (3) discussing benefits of, and skills needed, to build a cooperative or parallel parenting relationship, (4) focusing parents on the needs of children for an on-going relationship with each parent, (5) teaching positive parenting behaviors and appropriate discipline, (6) discussing the process of adult adjustment to divorce and how to cope with this change, (7) focusing on responsibilities of each parent to the children, and (8) describing helpful court processes, such as mediation. It is important to note that this may not be an option for those divorcing with instances of domestic violence.54 However, the educators of the program do ensure the content is sensitive to domestic violence and send the message that the goal of divorced parents should be to achieve a businesslike relationship with one another, primairly focused on raising their children.55 Another intervention method used in a minority of jurisdictions is a child focused divorce education class.56 The programs focus facilitating the childrens expression of feelings and are designed to help them understand their parents divorce while developing skills for coping with their feelings. These programs have been especially successful in helping with divorces in which they feel pressured to choose one parents side or to intervene in the conflicts between their parents.57 The school-based Children of Divorce Intervention Program was created with a group environment in mind. Children share experiences with one another, establish meaningful bonds with one another, dispel misconceptions related to divorce, and learn and practice skills to enhance their ability to cope with stressful changes and feelings.58 For some, this engagement which allows for sharing with others is more helpful to a child mere
It has been said that at its best, divorce will involve little interparental conflict, minimal routine changes for the child, maintenance of warm, secure parent-child relationships, and an environment in which the child feels comfortable discussing his or her emotions, fears, and frustrations.48 On the other hand, a divorce at its worst includes interparental tension, reduced or inconsistent contact with one or the other parent, changes to school, housing, and/ or financial resources, and a lack of opportunity to explore and communicate feelings.49 One study divided 240 divorced moms with children between the ages of 9 and 12 into two treatment groups and one control group.50 One treatment group received 11 group counseling sessions with both the mother and child and the sessions were aimed at improving coping skills, reducing negative thoughts about divorce, and improving relationships between the child and the parent. The second treatment group received 11 group counseling sessions with just the mother and had the same goals with added instructions on effective discipline methods. In the control group parents were given books to read about adjusting to divorce. Six years after the intervention, children from the treatment groups had lower levels of externalizing problems, reduced prevalence of diagnosed mental disorders, less high-risk sexual behavior, and lower rates of substance use, compared with the control group.51 The study confirmed the belief that effective interventions pre and post divorce can mitigate the harmful long term consequences of divorce. Alternative legal interventions that are used today include divorce education classes for both parents and children, mediation, parenting coordination and collaborative practices.52 These
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reassurance from an adult figure that others share their experiences. Lastly, parallel divorce education classes for parents and children are classes that focus primarily on the children of divorce.59 Children discuss their feelings about being stuck in the middle of a divorce, and parent groups are informed about what the children discuss. This type of intervention is believed to facilitate open discussions at home between parents and children.60
for their childrens safety or for their own. Many parents appreciate additional support emotionally and financially as well as the break that co-parenting provides.65
QUALITY RELATIONSHIPS
Studies have found that the form of custody granted by a court is much less important than the relationships that a child builds with his or her parents after a divorce.61 To many parents joint custody seems ideal, however, researchers are led to believe that such arrangements do not always benefit the child, and in some cases may be detrimental. A study of children during the first two years postdivorce was conducted by the Center for Family in Transition at Corte Madera, California, and the results were presented at the annual meeting of the American Orthopsychiatric Association. Dr. Judith Wallerstein, director of the center and a principal researcher for the study said what makes a difference to child of divorce is a much more subtle, much more elusive issue of how that child perceives whether he is accepted or reject by his parents.62 The study found that children who were subjected to a bitter or contested divorce were psychologically worse off if the courts imposed joint physical custody, feeling vulnerable, torn, and unprotected by their relationships with their parents when they must physically move between the homes of two parents who are angry with one another.63 On the other hand, children of parents that had an amicable divorce were found to be virtually unaffected by the form of the custody arrangement. Leading family psychologist Dr. Robert Emery of the University of Virginia has stated that psychologists have changed their views on whats important for the family. They have changed from a focus on family structure to a focus on family relationships.64 These results were confirmed by a research group in Australia. It was not the care arrangements that lead to the positive outcomes, it was the quality of the parents relationships with each other and the children. Professor Ian Katz, chief investigator of the team from the University of New South Wales in Sydney, Australia found that shared care is most likely to work when parents have no fears
182 AMERICAN JOURNAL OF FAMILY LAW Consider alternatives to high conflict litigation such as mediation and collaborative law practices. Help our clients to objectively see the big picture which we hope will include happy well-adjusted children who have significant, unhindered, relationships with both parents.
Equally Qualified to Care for Teens and Young Children; GordonPoll USA Youth Survey(TM) Findings Marketwire March 18, 2009. 6. Id. 7. Id. 8. What Do Kids Want Parents to Know About Divorce?; Survey Respondents Say Divorcing Mothers and Fathers Equally Qualified to Care for Teens and Young Children; GordonPoll USA Youth Survey(TM) Findings Marketwire March 18, 2009. 9. Id. 10. Id. 11. Id. 12. 22 J. Am. Acad. Matrim. Law. 461, 461 (2009). 13. 22 J. Am. Acad. Matrim. Law. 461, 463 (2009). 14. Id. 15. Id. 16. Id. 17. Through the eyes of a child: impact and measures to protect children in high-conflict family law litigation; Florida Florida Bar Journal April 1, 2010. 18. Id. 19. 22 J. Am. Acad. Matrim. Law. 461, 463-464 (2009). 20. Through the eyes of a child: impact and measures to protect children in high-conflict family law litigation; Florida Florida Bar Journal April 1, 2010. 21. The impact of family formation change on the cognitive, social and emotional well-being of the next generation; Dr. Paul R. Amato; National Library of Medicine; Future Child. 2005 Fall; 15(2) 75-96. 22. Id. 3. Id. 23. 22 J. Am. Acad. Matrim. Law. 461, 463 (2009). 4. Id. 5. What Do Kids Want Parents to Know About Divorce?; Survey Respondents Say Divorcing Mothers and Fathers 24. Children of divorce less committed to marriage; Charnicia E. Huggins; Journal of Marriage and Family 2001; 63:1038-1051.
Some suggestions for our judicial system include: Training judges/judicial officers on the psychological impact of high-conflict divorces on children and possible solutions. Dedicating particular judges/judicial officers to divorce cases who have specialized training and desire to handle family law matters. Utilizing parent coordinators to assist families as they navigate through the legal process. Developing a system where ADR alternatives, such as mediation, are a regular and integral part of the judicial process in divorce cases. This will encourage parents to resolve some or all of their litigation amicably whenever possible.
In sum, if we are willing to participate in training, provide resources to our clients, suggest referrals and give sound, objective advice when our clients are in turmoil, we can help their children understand and adjust to the divorce, as well as have significant (not perfect) relationships with both parents.
NOTES
1. Comment, Ameliorating the Effects of Divorce on Children; Cassandra Brown; 22 J. Am. Acad. Matrim. Law. 461, 461 (2009). 2. Id.
THE PSYCHOLOGICAL IMPACT OF DIVORCE ON CHILDREN 25. Children of divorce less committed to marriage; Charnicia E. Huggins; Journal of Marriage and Family 2001; 63:1038-1051. 26. Id. 27. Family wars: the alienation of children; Peggie Ward and J. Campbell Harvey; New Hampshire Bar Journal; 34(1) (March 1993). 28. Id. 29. Family wars: the alienation of children, Dr. Peggie Ward and J. Campbell Harvey; New Hampshire Bar Journal; 34(1) (March 1993). 30. Id. 31. Id. 32. Id. 33. Family wars: the alienation of children, Dr. Peggie Ward and J. Campbell Harvey; New Hampshire Bar Journal; 34(1) (March 1993). 34. Strohschein, L. Journal of Marriage and Family, December 2005; vol 67: 1286-1300. 35. Id. 58. Id. at 473. 36. Id. 59. Id. at 474-475. 37. Kids view of divorce influences mental state; Diana Mahoney; New England Bureau Reuters Health eLine News; March 9, 1999. 38. Id. 39. 22 J. Am. Acad. Matrim. Law. 461, 476-477 (2009). 40. Id. 41. Id. 63. Id. 42. 22 J. Am. Acad. Matrim. Law. 461, 476-477 (2009). 64. Id. 43. Id. at 480-482. 44. Id. 45. Prevention in Action: Protecting the children of divorce; Mahoney, Diana; Pg. 62(1) Vol. 33 No. 1. 60. Id.
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46. Through the eyes of a child: impact and measures to protect children in high-conflict family law litigation; Florida Florida Bar Journal April 1, 2010. 47. Prevention in Action: Protecting the children of divorce; Mahoney, Diana; International Medical News Group Clinical Psychiatry News Pg. 62(1) Vol. 33 No. 1. 48. Prevention in Action: Protecting the children of divorce; Mahoney, Diana; International Medical News Group Clinical Psychiatry News Pg. 62(1) Vol. 33 No. 1. 49. Id. 50. Id. 51. Id. 52. 22 J. Am. Acad. Matrim. Law. 461, 465 (2009). 53. Id. 54. Id. at 461, 466. 55. Id. at 470. 56. 22 J. Am. Acad. Matrim. Law. 461, 468 (2009). 57. Id.
61. The Children of Divorce: Joint Custody Is Found To Offer Little Benefit; Gina Kolata; National Desk; New York Times Section B, 13(1) March 31, 1988. 62. The Children of Divorce: Joint Custody Is Found To Offer Little Benefit; Gina Kolata; National Desk; New York Times Section B, 13(1) March 31, 1988.
65. Post Divorce: Effects Of Shared Care For Children; Rosalind Sedacca; Basil & Spice October 18, 2010; www. basilandspice.com. 66. www.ResponsibleDivorce.com
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