Fear is often one the most pervasive emotions in the divorce process, particularly for the person who is not initiating the divorce. Fear can also be the driving force when a spouse initially seeks to retain a “bulldog” or “shark” for an attorney or believes that only a judge’s ruling will assure a fair outcome.
But people generally don’t make the best decisions when they are controlled by fear or anxiety – primarily because the portions of our brains that control decision-making are overcome by emotion. However, experience shows that you have much more control of the process and a better chance of achieving your unique priorities in your divorce if you are able to overcome fear and focus on what is most important to you and your family.
Sometimes a client’s fear relates to the other parent’s substance abuse or mental illness. While knowing that the children love and desire a relationship with the other parent, the client feels the need to protect the children from potentially serious risks. In a settlement posture, the entire family can benefit from the use of neutral experts to assess the parent with addiction or mental health issues, make recommendations for monitoring and/or treatment, and then link time with the children to the parent’s compliance with such treatment and/or monitoring. As the parent makes progress in maintaining sobriety or becoming mentally healthy, the children’s time with that parent can automatically increase and/or the schedule can be adjusted. By contrast, if he or she suffers a relapse or does not follow the agreed-upon treatment/monitoring, more restrictions and protections to ensure the children’s safety would be automatically put in place.
Another kind of fear might relate to a workaholic or previously-unavailable parent. If the parent has historically put work first or has extensive work-related travel, can that parent now be relied on to provide the children with routine and consistency? The most beneficial approach in this type of situation will include a focus on the real problems, an incisive analysis of the specifics of these issues, and generating creative solutions to address the parent’s and children’s needs and desires. In the case of the “workaholic” parent, the use of skilled experts can assist the parents in creating a plan that balances flexibility and predictability, as well as addresses the children’s specific needs. And, once they have worked with such an expert, the parents can return to adjust or tweak the plan as the children’s or parent’s lives change.
In contrast to the settlement posture, courts generally enter orders based on the circumstances existing at the time of the litigation and cannot be as flexible or creative when it comes to custody. And, unless the parents are in agreement or begin working together, it is often necessary to return to the litigation process again (and again) if there has been a change in circumstances that justify a change in the custody order. However, overcrowded dockets don’t provide the time or resources to micromanage judicial custody orders or quickly make needed changes to the children’s schedule – unless there is an immediate issue affecting the children’s safety or welfare.
If you are facing a divorce and don’t want to react from a place of fear, especially if you are dealing with a high conflict or complex co-parenting situation, consider selecting an attorney who is particularly skillful in finding creative solutions for unique family situations, including mental health and substance abuse challenges and non-traditional co-parenting schedules. Also look for an attorney who is experienced in both out-of-court settlement and in-court litigation and can assist you in choosing a divorce process (settlement, court, mediation, etc.) that will be most advantageous for you, your children, and your specific needs. Most importantly, choose an attorney who truly listens to you, demonstrates an authentic understanding of your top priorities and needs, and can help you overcome your fear so you can make long-term informed decisions that are best for you and your children.