Tidbits About Children in Divorce and Custody Cases

Today’s blog will be a break from my typical legal analysis of family law issues. Here I focus on tips, facts and suggestions pertaining to the children of the transitioning families that I have picked up in my time working as a matrimonial, family law attorney and mediator in the great state of New York. As usual, when I veer off my exact topic of expertise, I like to throw in a disclaimer that I am not an expert in psychology or sociology. Therefore, I recommend speaking with trained and licensed therapists that specialize in children and family matters about your questions and to verify the accuracy or inaccuracy of anything in this article.

One statement that I am qualified to make is that parents or parties involved in a child custody and parenting time or visitation case, whether it is pursuant to a divorce or family court custody case, are advised not to talk to the kids about the case. In most instances the court will assign an attorney for the child(ren) who has training and experience in speaking with the kids about the matter. Ultimately the court might hold what is called an “in-camera” interview with the child or children before issuing a decision on custody and parenting time.

This interview is usually in the judge’s chambers, not in the courtroom, and is done outside of the presence of the parents and other lawyers. Usually only the attorney for the children, the judge, the children, and a court reporter are in the room. While the child custody lawyers for either side might send suggested questions for the Judge to ask the children, the judge decides what to talk about “in-camera”.  If it comes out that one of the parents has been talking to the child or children about it, the Judge usually will not look too favorably on that fact. It might have some influence on the outcome of the case.

There are studies that suggest that children do best when both parents are invested in the decision making for the children. One very interesting study by Sociology Professor Paul Amato at Penn State, which is linked to here, compares the future well-being of children growing up with married and divorced parents. There is a correlation with the data he studied for future well being for children growing up in stable two parent marriages. High conflict marriages, however are not indicative of future well-being for the children. Conflict is one of the biggest obstacles to the well being of children. He speaks of the benefits of co-parenting which can exist in divorced or separated families. For couples that need to go their separate ways, a way to accomplish co-parenting is by starting with a joint legal custody arrangement, for those that are able. Joint legal custody refers to decision making, not necessarily where the children live primarily. This means the parents makes decisions together for the children. Please see my other blog entries and webpages for more explanations about the different types of custody.

I have learned that children have a tendency to blame themselves when their parents do not stay together. It is suggested that parents make sure they tell their children that the split is not the children’s fault. It is recommended not to reveal the break up news to the children until the parents are sure it is happening and have a parenting plan in place to tell the children about. If possible, parents can tell the children about the break up together and close in time to when one or both of the parents are going to move out of the current residence. The proximity in time might help reduce the fear or anxiety that could come with imagining the future move out.

Some common language contained in court orders and stipulations about custody and parenting time is that parents are expected to facilitate the relationship between the children and the other parent. Often the orders state that the child should not be encouraged to call any other person, besides their biological parents, “Mom” or “Dad”.  The order might state that neither parent is to talk disparagingly about the other in front of the children.

The foregoing are some common themes with children in family law. There are many other nuances involving children in divorce and custody cases which we can discuss with you. As always, please call about your free initial consultation. It will be our pleasure to talk to you.

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