Parental Alienation

I hear a common complaint. “My wife [or husband, ex-wife, ex-husband] is alienating my children from me.”

True parental alienation can be a terrible problem in a divorce or other family court case. The alienated parent often feels helpless in the situation. Alienation can affect parent/child relationships for years to come – even for a lifetime.

When confronting alleged parental alienation, I often have clients answer several questions:

  1. What exactly is the other parent doing or saying?
  2. How are the other parent’s actions affecting the children?
  3. How intent is the other parent in continuing the alienating behavior?

Depending on the answers to these questions, and taking the entirety of the situation into consideration, a parent may take various steps to call attention to and [hopefully] end the alienating behavior:

  1. Family counseling;
  2. Psychological evaluations;
  3. Mediation;
  4. Custody litigation.

For more information on this topic, I highly recommend the book Divorce Poison by Dr. Richard Warshak.

Alternatives to Hotly-Contested Family Litigation

There are alternatives to the hotly-contested divorce or custody battle so common in family court. Alternative dispute resolution options such as negotiation and mediation can provide parties with an opportunity to resolve their dispute on their own terms rather than having a judge decide the case.

Resolving a case outside of litigation always requires compromise on the part of both parties. In my opinion, some of the wisest advice about compromise comes from a Calvin & Hobbes comic strip. Calvin asks Hobbes, “What do you think is the best way to get what you want? Is it better to hold fast and never back down, or to compromise?” Hobbes replies, “I suppose it’s best to hold fast when you can, and compromise when you need to.” Calvin concludes, “That’s a lot more mature than I think I care to be.” Indeed, resolving a family case outside of court requires a level of maturity that can be a challenge.

Mediation is the most common form of alternative dispute resolution. Mediation is usually conducted with both parties and their attorneys present, often in separate rooms from each other. The mediator visits back and forth between the parties to attempt to facilitate settlement of the case. Mediation is a confidential process, and the mediator cannot be called as a witness at the trial of the case should mediation be unsuccessful. The mediator is neutral and cannot give legal advice. The mediator cannot decide anything in the case like a judge would do. Any agreement reached at mediation must be by mutual consent of the parties. Generally, each party pays half of the mediator’s fee unless the parties agree otherwise or the court orders otherwise. If mediation is successful, the parties will sign a written mediation agreement which will later be taken before the court to be approved by the judge and made the order of the Court.

Health and Mindfulness During Divorce

Family court cases involve deeply personal matters. Often, parties who may be otherwise healthy, stable people find themselves in deep despair or simply unable to think rationally. However, because important decisions must be made, it is incredibly important to approach a family court case in a careful and mindful manner, thinking clearly about each issue.

I recommend that clients in family court cases regularly seek mental health treatment with professional mental health providers. If a client has a particular religious persuasion, regular religious practice can also be helpful during a family court case.

Clients should also take care of their physical health during a family court case. Regular exercise and healthy eating are vital in reducing stress levels. Join a gym. Take a yoga class. Go for a run or brisk walk. Commit to a regular exercise routine.

Prayer, meditation, and/or mindfulness are also vital as you approach your family court issues. These practices are commonly recognized to reduce stress levels and to assist in clear thinking. Mindfulness is learning to be aware of the present moment, the here and now. “Though the concept originates in ancient Buddhist, Hindu, and Chinese traditions, when it comes to experimental psychology, mindfulness is less about spirituality and more about concentration: the ability to quiet your mind, focus your attention on the present, and dismiss any distractions that come your way.” (“The Power of Concentration” by Maria Konnikova, The New York Times, December 15, 2012). Mindfulness is vital in clearly seeing the reality of a family court situation and in dealing with that reality.

Stopping, Looking, and Listening for Children

Atticus had another seizure this morning at 5:53 a.m. I know this because I listen for these seizures. I listen so very carefully for them. I check in on him if his breathing changes. I feel his pillow for the flood of drool that inevitably accompanies the seizure. I watch for signs of him being grumpier than normal when he gets up in the mornings. I watch and listen.

My love for Atticus and my responsibility as his parent require me to watch and listen.

Frederick Buechner has said that loving God means at the very least stopping and looking and listening for God. Likewise, loving our neighbor means, at the very least, stopping and looking and listening for our neighbor. (See “How various forms of art and religion say ‘pay attention’” from Buechner’s Norton Lecture, October 17, 1987).

Applying Buechner’s teaching to parenting, loving our children must include stopping and looking and listening for our children.

I do a good job listening for the seizures. They are big, bad, and scary. But how well do I listen when Atticus is annoying me about something? Do I really hear him? Do I really see him?

Seven-year-old Atticus is endlessly fascinated with plants and animals (or parts of animals) that he finds while exploring outside. Do I listen to his excitement? Do I share the wonder with him? Not as much as I should. Another bug? Another feather? Really? Yes, really!

If Atticus is in a bad mood after school, do I find out why? If I do ask, and he says, “nothing,” do I pursue it further?

Stopping and looking and listening to our children takes time and requires work. Just as I look and listen for the scary seizure, loving Atticus requires me to take the time and do the work to look and listen to him, to what he says, to what he does, to who he is.

What’s Happening with the Family Law Profession?

I hear the question often, “How can you be a divorce lawyer?” And sometimes when the stress levels get high, I wonder that myself. I wonder that further when I hear of family lawyer after family lawyer leave family law practice or leave the practice of law altogether. Just today, I learned of a really good fellow family lawyer who’s leaving private law practice. What’s going on? I don’t have a full answer, but here’s what I hear from other lawyers and know this to be true from personal experience:

1) Being a family lawyer is stressful. Family lawyers are constantly navigating high-stakes legal issues with emotional clients who are not always their most rational selves.

2) It is tough to earn a living as a family lawyer. Yes, family lawyers charge hundreds of dollars of hour. But much of that money goes toward malpractice insurance, office space, and bar dues and continuing legal education. For solo-practice and small-firm lawyers, as most family lawyers are, much time is spent on administrative matters rather than actually practicing law. You do the math.

3) The outcome of a litigated case is often not satisfying. Neither party comes away from the case happy.

In spite of these challenges, I think there are good reasons to practice family law:

1) While family law is not for the faint of heart, it offers a challenge. And helping clients through a difficult time in life is rewarding.

2) Although family lawyers don’t earn millions of dollars in a single case as some other lawyers might, a family lawyer with a good business sense can earn a good income.

3) Alternative dispute resolution methods such as negotiation and mediation are becoming more prevalent in family law. Parties to a family dispute have the opportunity to hammer out a resolution in their own case rather than requiring a judge to decide.

With determination and creativity, family law can still be rewarding work.

Clear Communication

Lawyers are ethically obligated to communicate with their clients. To most lawyers, this means returning telephone calls, answering emails, and notifying clients when something big happens in the case. However, I think that the duty to communicate goes beyond that. I think the duty to communicate is also a duty to communicate clearly.

Everyone has heard the lawyer who likes to hear the sound of his own voice. He goes on and on using big legal-sounding words. What he should be doing is making sure his client understands what the heck he is saying.

In his work De Oratore, Cicero said, “… in oratory the very cardinal sin is to depart from the language of everyday life and the usage approved by the sense of the community.”

To the lawyer, be clear in communications. Be understandable. Keep communications simple and less confusing. Clients will understand what you are saying, and you will better fulfill your ethical duty to communicate.

To clients, tell your lawyer when you do not understand. Get your lawyer to explain things to you.

To my own clients reading this blog, take me to task if I am not communicating clearly with you. Ask me until I have explained things so that you understand.

Rant About Divorce Lawyers

Most people on the street do not have the highest opinion of divorce lawyers. When meeting someone and telling them what I do for a living, I get various responses, often beginning with “Oh…. [inset long pause here].”

Is this unwarranted bias against lawyers and against divorce lawyers in particular? Are divorce lawyers hovering at the bottom of the food chain along with other much-maligned professions such as auto accident lawyers and used car dealers? And are these opinions justified?

I come in contact with a lot of other lawyers. I read what other lawyers write. I read how lawyers are dissatisfied with their work. I listen to them complain. I watch lawyers fight huge battles over very small wars at the expense of their clients. These lawyers often delude themselves into believing that they are just doing their jobs by aggressively advocating for their clients.

Fighting is a must. And I like to fight a good battle in the courtroom. But the fight must be conducted responsibly, according to the client’s instructions, and only after the client has been fully advised of the law as applied to the client’s case.

What about the reality of divorce litigation? In a divorce case, what about the reality that there is usually not a winner or loser? What about the reality that children are hurt in the fight? What about the reality that litigation often consumes what people have worked so hard to obtain? These realities are where so much dissatisfaction comes from about divorce lawyers.

I as a lawyer cannot control the fact that litigation is expensive. It takes lots of time to fight these fights.

And I as a lawyer cannot control my clients if they are dead-set on being unreasonable.

But I as a lawyer have a duty not only to advocate for my clients but to also be their legal counselor and provide candid advice.

Being a divorce lawyer is not an easy job. It requires tough and aggressive action in litigation to protect client’s rights. It also requires the lawyer to give candid advice and counsel about terribly sensitive issues.

If I have a client who has committed adultery then I have to break the bad news of what that fact might do to her request for alimony under South Carolina law. If I fail to give that advice, I am doing my client a disservice, even if that is not what she wants to hear.

A good divorce lawyer does not just listen to the client and follow the client’s instructions without providing such candid advice. It would be malpractice for me to aggressively fight for alimony when I know that the facts work against my client in each and every way if I do not provide my client with the candid advice. I would be wasting my client’s money. I would be wasting the court’s time. And I could be jeopardizing other issues in the case that could be more in my client’s favor.

Ultimately, I must follow my client’s instructions and either fight the fight my client wants or get out of the case. But before I fight that fight, I am absolutely ethically obligated to advise my clients honestly, candidly, and competently.

I believe that if a divorce lawyer takes the time to know the client and the client’s case, takes the time to explain each aspect of the client’s case to the client, and follows the client’s instructions after the client has been properly advised, much of the dissatisfaction would disappear. But client beware, if you want that type of competent treatment by your lawyer, it takes time and does not come cheap. A good divorce lawyer will cost you. But if you need a good divorce lawyer, the cost will be worth it.