“Ask Three Mentors” is a question-and-answer column, produced exclusively for Insights, that highlights the fact that members of AFCC are attorneys, judges, and mental health professionals. Many of our most experienced members are committed to mentoring and passing on the wealth of knowledge they’ve acquired through years of work in the field of family law. Each month we will pose a custody-related question to three members of our panel of exceptionally experienced and widely respected family law experts. Our readers will then have the benefit of hearing the answer from the perspective of a judge, a mental health professional, and a family law attorney. Please submit your questions for our Mentors here. For biographies of our Three Mentors panel members, go to this page.
Below our Mentors answer this question:
What are three ways attorneys can assist clients to reduce conflict in custody cases?
Judge Dianna Gould-Saltman
- Help them get it Out of their System. Has a client ever come into your office saying, “Attorney, guess what? I was looking on the internet and came across this ‘new’ thing called…Parental Alienation Syndrome, Borderline Personality Disorder, Narcissistic Personality Disorder, etc. I’m sure that’s what’s going on in my case. Ever heard of it?” There are definitely cases of psychiatric disorders and alienating behavior out there. I’m pretty sure they are far fewer than the estranged spouses who are “sure” the other side has it. So what do you do? YOU be the voice of reason. YOU discuss how behaviors, not labels, make any difference to a judge and learn about the behaviors of BOTH parties before recommending a plan of action. Let the client know that, not only are labels less significant than behaviors, even behaviors are only relevant if they bear on parenting. You have been hired to be the dispassionate voice of reason, not the sympathetic best friend. If that isn’t in your retainer agreement, maybe it should be.
- Don’t play therapist. If you’re the lawyer, be the lawyer, even if you would make a really good therapist and actually have the licensure to do so. Clients under stress need clear boundaries, so they know and respect your role (and, therefore, are more likely to listen to your legal advice). Many clients would do well to talk with a psychotherapist to reduce their stress about the family court process, become familiar with their new roles as single parents and learn some co-parenting and communication skills. Most psychotherapist charge a lower hourly rate than lawyers and may even be covered by insurance. You do your client no favors, and ultimately save them no money or pain, by taking on that role yourself. Point them in the right direction. Give them some names of psychotherapists you trust and let the client do the legwork. If you have a concern about the “stigma” of a client having a therapist, don’t. It is a much more positive thing to recognize you need help and go get it than to avoid the need for help and have those unaddressed issues spill out on the witness stand.
- Keep your retainer current. Seriously. I’m not suggesting that you not take on pro bono cases and I appreciate when attorneys do. But pick your pro bono from the start. Don’t let one of your paying clients become your pro bono case somewhere along the way. How does this reduce conflict in custody cases? In my experience, long, drawn-out custody battles damage children. Even a mediocre result that concludes the battle creates the opportunity for the family to begin healing. If they have to stop battling when the money runs out, there will be resolution and that opportunity for healing will start. If you continue to work for “free,” you are financing that custody battle, allowing the painful damage to continue. Even if you are promised payment “at the end,” you have given the client the opportunity to extend the duration of the litigation. Resist the temptation to do that, even if, and maybe especially if, you really like your client. Put it in the retainer: keep current or I’m out. Then mean it. And if you’re the attorney thinking about coming into a custody case where the potential client has a large outstanding bill owing to current counsel, this goes double for you. Don’t be the enabler. The client may be unhappy that you kept to your word (and expected the client to keep to his or hers) but that’s the difference between being a professional and being a “friend for hire.” You will have done the client a great service by giving the client a reason to put an end to the litigation.
Dr. Lyn Greenberg
- Focus on the concrete. Separating parents often present with “positions” and “conclusions” about their desired outcomes, but may not have completely thought through how these proposals would work in daily life. Take clients through an imagined day, week, or holiday to discuss how their proposals, or the proposals of the coparent, would actually work. Help them identify the positives and negatives, arrangements required, inconveniences, or circumstances that might interfere with the need to create new lives. For example, the idea of splitting the child’s time between households on Christmas Day may initially appeal to parents who are distressed at the idea of spending any Christmas away from the child. In reality, it may interfere with the child’s ability to enjoy Christmas with either parent as well as indefinitely requiring parents to be in the same location during the holidays. It may be helpful to review these scenarios with parents, or suggest that they do so with a mental health professional, before the parties participate in mediation. What may sound like a tedious process can actually occur fairly quickly, and my save enormous amounts of time, money, and frustration for the parents later. This process if facilitated if the attorney understands the client’s daily life. Take a few minutes to inquire about daily routines, struggles with children’s behavior, upcoming decisions about school or activities, daily stressors, etc. This may allow you to both refer the client for appropriate services and craft effective settlement proposals or requested orders.
- Use caution with stipulations for “rights of first refusal.” In the abstract, it often appeals to parents to be the first choice to care for their children if the other parent is unavailable even for a few hours. In reality, such arrangements can be burdensome for both parents, inviting intrusions into the details of their lives and, for some parents, leading to excessive concerns about the whether their coparent is offering them every moment of parenting time to which they are “entitled” by the agreement. For low-conflict parents, arrangements around these issues may be easy, feel natural to the children and support the children’s needs for stability their access to regular activities. But if conflict between parents is high, short-duration “rights of first refusal” requires more frequent negotiation between the parents and may markedly increase tension and stress on the children. In these circumstances, it may be more helpful to establish a “right of first refusal” only when a parent is going to be unavailable for a longer period of time, such as overnight.
- Engage appropriate mental health services early. Family separations can be enormously destabilizing for both adults and children. The process of separation also imposes specific demands that require healthy coping abilities (tools). Parents need to be able to manage their emotions, shield children from conflict, and help their children accomplish daily tasks (chores, activities, homework) and, in most cases, resolve any issues that arise from a transition to two households. They also need to be able to attend to counsel’s advice and make healthy decisions. Children need independent skills and tools for managing stress, separating themselves from the parental conflict, resolving problems in relationships, differentiating their own feelings from parents’ feelings, and recovering from any traumatic events they have experienced.
Attorney Mike Kretzmer
This is a tough question because there are so many variables to consider. And, perhaps the most important variable of all is the client’s personality and temperament. Knowing how to manage your clients feelings, expectations and perspective on the court process and the roles of counsel for each party and the minor(s) counsel, if appointed. In terms of three ways counsel can assist their clients’ in reducing conflict in custody cases, three words come to mind that are critical: modeling, listening and kindness. These words are intertwined and vital to the process of resolving custody conflicts in an effective and lasting way.
Modeling: More and more evidence points to the fact that we learn by what we see. I don’t think there is anything more important that we can do for clients in high-conflict cases than to model for our clients that we are approaching their problems in a thoughtful and respectful manner. Far too many times I see counsel in a tough custody case engage in hostile and aggressive behavior and tactics in negotiations, in court appearances, in the tone that is taken in written communications. with opposing counsel and parties. Rarely does taking on the posture of the 800-pound gorilla or the bully in the courtroom lead to a successful resolution of any dispute, much less a custody dispute already fraught with high tension and emotion. Taking on and acting out a role as the tough guy lawyer in the case more often than not simply inflames the situation and drives parties into opposing corners instead of drawing the parties together in finding common ground and solutions. If counsel can be mindful and demonstrate thoughtfulness in working towards solutions, good clients will pick up on this and follow counsel’s lead in working towards resolution. Model to clients a calmness and steadfast commitment to working progressively towards solutions and away from emphasizing and re-emphasizing blame for whatever has occurred. Work towards solving the problem, rather than constantly attempting to establish who created the problem.
Listening: Remember that God gave us two ears and one mouth so that we will listen twice as much as we talk. Listening is a skill that is vastly undervalued and appreciated in our work. Listening should include not only really listening to our client’s wants and concerns, but really listening to what the opposing counsel party’s wants and concerns are as well. Summoning up the patience to listen and understand the point of view of the client and the opposing party can be daunting. So often we believe that stating our position and grabbing the highest ground where we can announce our position for the other side and the court to hear is the most important thing we can do. Truth is that it is not. You don’t win a custody dispute by being the loudest or the most passionate and emphatic. Listening can disarm and diffuse the tension. Careful listening allows you to concentrate on important information and ask pertinent questions. Too often we think we are really listening, but we are not. We may not be speaking, but we are not listening with a commitment to hear and understand what is being said. We are, rather, thinking “when is this person going to shut up so I can tell them what is really important!” Everyone wants to really be listened to and frequently feels they are not. In order to successfully reach a good and lasting custody resolution, we need to promote and encourage listening.
Kindness: Kindness kills. It kills hate, animosity, resentment, suspicion, prejudice, presumption and other equally dark feelings and attitudes. How often has someone said something at the very start of a case that is so mean-spirited, so vile, so offensive that the very spoken word or words then color and inform the attitudes of one party towards the other for the life of the case. The one cutting insult, horribly and hurtfully worded e-mail, the off-hand careless and callous remark can cause a deep hurt that lasts a lifetime and destroys trust forever. Whatever we do as counsel, we have to be careful about our words and emphasize to our clients the potentially crushing effect of the ill-chosen word. But, we should also be telling our clients what they can purchase by carefully chosen words and expressions of kindness. Judge Michael I. Levanas in the days when he sat in Family Law would tell those mothers and fathers who seemingly had nothing nice to say at all about each other that not only did he not want them to say anything bad about the other parent, but that he demanded that they say something positive to their children every day about the other parent. It is the variation on the “Love you make is equal to the love you take” theme.
As Counsel, it is our important task to model, listen and be kind. As Gandhi said, “Be the change you wish to see in the world.” The keys to being a great lawyer are not all in the law books, the statutes, the rules of procedure, etc. We need to set examples of tone in our communication (and listening is communication) if we want to give meaning to the substance of our ideas and achieve our client’s goals.