Popular Myths About Shared Parenting

Sometimes separated or divorced parents are keen to work out a good shared parenting arrangement but are discouraged by the prejudices of friends or professionals. We will unravel some common myths about shared parenting in order to help those parents get past such objections.

MYTH: Kids need to spend most of their time in one home

Reality: This is an understandable leftover from hopes that our marriage would thrive and our kids would be in one happy home and an unquestioned presumption of many lawyers and counselors. It’s a view that seriously underestimates the adaptability of children and fails to appreciate what is really important for them. The stability that children need is more than geographical. It is emotional stability the stability of meaningful, continuing relationships. The emotional stability that’s critical for a child’s healthy development comes not only from ongoing relationships with parents, but also from their community. The child’s world is those relationships that arise from associations and the sense of belonging that these important connections bring.

MYTH: Kids need to know where they live and not be going back and forth

Reality: A clear, simple parenting plan plus goodwill from both parents will quickly get children into a routine. Breaking up a week into smaller chunks may mean that parents don’t go long without seeing their children, but it may also mean children are constantly changing over. Changeovers are often the hardest time, so lean toward a pattern that has the fewest changeovers, except for very small children.

Q: No sooner are my children settled with me than they have to gear up to change again. Is it better if the children stay in one place and the parents rotate?

A: It needs a dependable communication system to assist with smooth changeovers and a high degree of dedication and positive spirit. If they are staying in the family home where they have been living, this may only be possible for a time as the home may have to be sold for your financial settlement. Maybe you should initially consider two- or three-week blocks of time to allow for a proper settling-in before the children have to uproot themselves again.

MYTH: Infants under three shouldn’t spend nights away from Mom

Reality: This view was based on outdated theory and is contrary to recent research. Attachment theory tended to emphasize the exclusivity of the maternal bond and its continuity as being crucial to healthy development. There is no consistent evidence that a night with their father is going to cause harm. If children are well attached to the other caretaker (Dad), they should soon become used to him coming at night if needed, for example. There is growing evidence that overnight stays in infancy form a meaningful basis for parent child relations.

At times, Mom’s own attachment to her child interferes with developing a suitable parenting arrangement. Maternal anxiety is a very powerful protector of young infants and therefore deserves respect. Overnight contact with babies and infants (approximately up to eighteen months) is not crucial for cementing parent– child bonds; daytime contact periods are the building blocks.

MYTH: The more homey, hands-on parent is better equipped for childcare

Reality: Not necessarily, though this parent will have confidence and experience. Emotional bonds are created and strengthened by parents being available and doing things with and for children, but it’s not just this. It’s listening and talking empathically with your children, hanging out together, sharing parts of your life with them, and helping them learn to discover independently that creates bonds.

Q: It can’t be right for our twelve-month-old to be away from me for long periods even though he knows his dad?

A: If he has had time with Dad, then he will have an attachment, meaning he’s okay for increasingly long periods without you in Dad’s care. Keep Dad informed about established routines so he can have a settled baby to bring back to you, which will enhance your confidence in his care. Some dads aren’t that good with babies on their own--let his relatives help if they’re local.

A silver lining to the disappointment of separating is children get the chance to develop a closer relationship with parents who are committed to shared parenting but who weren’t very available before, and who can therefore develop their parenting skills more effectively. A parent who appeared to contribute little to family life deserves the chance to become a more involved parent.

MYTH: Where there’s conflict between parents, there should be little or no contact

Reality: Lawyers and counselors sometimes suggest that the only solutions to conflict between separated parents are: to reduce or eliminate contact between the parents or between father and children, or to have supervised pick-ups and drop-offs. This is inconsistent with research, which shows that good contact results in reduced conflict between parents. Rather than seeing hostility as a disincentive to shared parenting, it’s better to view it as an indicator of needing a better parenting plan.

In the face of parental tensions, children tend to align themselves with one parent, implying that the other parent is at fault. This is a potentially misguided assumption as to what the child’s behavior means: it confuses the picture for parents and their advisers, and should not be the basis for alterations in the arrangement.

KEY MESSAGES

  • Myths need challenging and realities need facing.
  • Children need two homes when they have two separated parents.
  • Organize the program to suit your circumstances, not vice versa.
  • Infants require special consideration when part of a shared parenting arrangement.
  • Shared parenting allows both parents to be hands on.
  • Both quality and quantity are important in parenting.

This article was edited and excerpted with permission from Shared Parenting: Raising Your Children Cooperatively After Separation by Jill Burrett and Michael Green

A Family Friendly Approach to Resolving Child Access

Posted by Michelle May O'Neil on August 22, 2011

When it comes to establishing each parent’s individual roles and their levels of involvement, influence, and time spent with the children, the terms most discussed and debated are joint custody, sole custody, and visitation. Generally, physical child custody (whether sole, shared, or split) really comes down to the amount of time spent with one’s children. Custody in the legal sense (that is, legal custody) governs who will make what types of decisions affecting the health, education, and general welfare of the children and under what circumstances such decisions will be made.

Parent and child un-friendly terms

Basically, without further definition or limitation, a parent with sole legal custody calls all the significant shots with or without the other parent’s “consent” or input. The term custody often provokes anger and resentment between bickering parents. The word custody in its basic and primary sense suggests possession and control.

In moderate to highly contentious cases, the initial fight for control is often a key catalyst to a perpetual battle. The children’s feelings and emotional well-being often get lost in all the posturing that accompanies one’s desire to show the other parent who is in the driver’s seat.

The counterpart to custody is visitation. I “visit” clients in jail. Priests “visit” the dying in hospitals and nursing homes. Doesn’t “visitation” suggest a short stay? Generally, we visit people or places that we don’t see too often. When we are young we shouldn’t be “visiting” our parents, we should be spending time with them. A parent’s perception of terms like custody and visitation often fosters power-based and position-oriented discussions. This is usually not productive when the lives of our children are at stake.

Changing words for the better

In recognizing the power of suggestion and influence that can be derived from legal terms and principles in the area of family law, legal wizards have made significant efforts in the last decade or so to use more appropriate terms when discussing how to govern the lives of our children and the parent-child relationships that are affected by separation and divorce. These days, custody and visitation are more appropriately discussed in terms of child access and parental involvement.

Parents who are caught up in “child access disputes” should take special care to focus their respective and combined efforts in arriving at a fair and reasonable “parenting plan” and a “residential schedule” that works best for their children.

No schedule = no stability

When there is an ongoing fight over child access, it is important to realize that the term stability, in the context of fighting over the division of parental time, is an oxymoron if there is no agreed-upon schedule. When there is an ongoing power struggle to maximize or minimize parental time, the life of the child is anything but “stable.”

Children adapt. The theories or justifications of years past, the “traditional visitation schedule” if you will, that subscribed to the notion that a child needs to only regard one parent’s house as “home” and that he must sleep in the same bed every night is far less important than often proclaimed.

A 50-50 schedule works

While it is not presumed that 50-50 is best for all children in all situations, it sure seems like a fair place to start. Furthermore, I have found that if the parents truly opt to act in accordance with the children’s best interests and if each parent operates from such a position of theoretical and practical equality, it is far more likely that one parent will voluntarily, if, when, and as needed, make the sacrifice of diminished time if it is truly beneficial to the children’s schedule.

Once the power struggle for control and the claim for the overwhelming majority of time are abandoned, it simply will not be as important when compared to what may genuinely be in the children’s best interests.

Court orders must be precise

If the division of time is not mutually satisfactory, or if it is not otherwise possible to arrange a basic schedule with a certain amount of predictability (along with situational flexibility, respect, and cooperation), a court ordered schedule will ultimately be forced upon you. In such situations, any written document or court order must leave nothing open to interpretation. This is still far easier and far less damaging to the children than the constant tug of war that often will occur in parental skirmishes.

How to create a schedule

There are many ways to approach the development of a residential and access schedule. Rather than explain or justify any of them, let’s start with a few basic principles.

  • There is no moral entitlement to anything more than equally dividing the time the children spend with each parent.
  • There is no legal entitlement to equal parenting time.
  • If you and the other parent were both completely committed to working out a schedule that maximizes each parent’s time with the children, you could do it.
  • The children’s best interests are usually served when measured within the reasonable and practical limits of life in general and balanced in particular with the parenting styles and attributes of each parent.
  • If each parent felt secure that they would truly have reasonable and liberal time and access with their children, without being unreasonably rebuffed, the counting of overnights would become less important and a more stable schedule (whatever the percentage of time comes to be) would be more likely to develop on its own.
  • The best schedule is one that minimizes conflict and maximizes the children’s time with each parent.

Although maximizing parental time is very important, it should yield to the best interests of the children. And obviously, each parent’s differing views about what is or is not in the children’s best interests is one of the many contributors to child custody chaos. The desire for power and control are other major contributors.


This article was excerpted for Divorce Magazine with permission from the book Stop Fighting Over the Kids by Mike A. Mastracci

How Do Attorneys Charge Clients for a Divorce?

Posted by Michelle May O'Neil on August 15, 2011

It is not unusual for clients to complain about their attorney fees for a divorce. Below you can find some of the different ways that attorneys charge for handling the divorce process. This may help clients understand the billing process and perhaps what their best option is when it comes down to hiring an attorney.

1. Flat Fee:

A recent blog put forth the idea that the best way to bill is on a flat fee basis. There are merits to flat fee billing if each case can be processed very quickly with few court appearances. In most instances, a flat fee billing is neither fair nor reasonable to the clients or the attorney. If a flat fee is high the client is often charged more for services than is justified in his or her divorce. If the flat fee is low the attorney may not be providing full or adequate services, and if problems arise they often will not be properly dealt with. If the client calls every day knowing that he or she is not going to be billed for it this can encourage a lot of wasted time. In those instances the attorney may not be handling the case as thoroughly as necessary or giving all the time that should be devoted to a particular divorce case. If problems arise and what starts out as a simple case suddenly becomes complicated then the flat fee arrangement can turn into a disaster for everyone.

2. Hourly Billing:

This is the most common fee arrangement. In many practices, an attorney will bill on an hourly basis against a retainer. Some attorneys will take the position that the retainer is just to retain the attorney and then the fees on an hourly basis are billed on top of the retainer. In the past when the economy was good and people weren't hesitant to spend large sums of money on legal services, that might have made sense. In these tough economic times that makes no sense at all. What is normally done is charge a retainer and then an hourly rate against the retainer. If the case is simple, with few problems, the retainer will cover the entire fee. If problems arise or a lot of time goes into the case, then an hourly rate will be billed once the retainer is used up. Some ways for clients to save money when operating on a retainer basis: maximize time, do not call every day, raise several questions at once and utilize the firm’s support staff or associate in many instances, to maximize the amount of legal services and minimize the fees involved. Hours are normally divided into increments. Some attorneys bill in quarter-hour increments, and others in a third of an hour or a tenth of an hour. Any correspondence or work done on a file is billed upon these time increments. This includes phone calls, e-mails and court appearances. Some attorneys will bill a minimum of one or two hours for court appearances. Driving time is usually billed as well. When you meet with an attorney you should discuss the fees carefully and find out exactly how the billing is done and what is the standard practice for that attorney.

3. Unit Billing:

Some attorneys are using what is called "unit billing," which means that they bill not for time but rather for units. The argument for unit billing is that as an attorney becomes more and more experienced with more work on the computer, work that might have taken an hour or two can be done in a quarter hour or less and therefore unit billing is done because an attorney who is more efficient and experienced should not be punished for his/her efficiency or expertise.

4. Value Added:

Another means of billing which is frowned upon more and more is what is called "value added," where if there are exceptional results on top of the hourly billing or retainer there will be some type of bonus at the end.

As you can see, in family law there are many ways to bill. The critical thing at your initial consultation is to make sure you understand how you will be billed and also make sure that everything is spelled out in writing. You should always have a written contract or retainer agreement with your attorney, so that if there are problems or issues in the future it is all clearly spelled out.

Hat tip to Henry Gornbein for his May 27, 2011 post

Myth: 12-Year-Old Children Get to Choose Where They Live

This is an excerpt from the book I co-authored, “All About Texas Law and Kids.”

People frequently ask, “When my child turns 12 can’t she decide to come live with me?”  This is probably the biggest myth in all of family law.

When a child turns 12, she is entitled to express an opinion about with who she wants to live. The judge still makes the final decision based on the child’s best interest. Before the age of 12, the child has no right to express an opinion in the court proceedings.

A child who is at least 12 years old begins to have opinions, and sometimes strong opinions, about her living environment. The judge remains the final authority on where the child lives so the judge can examine the basis of the child’s choice and her motivations. For example, if the child is being defiant in Mom’s house because she doesn’t like Mom’s rules, and Dad lets the child run wild, the judge will not likely listen to the child’s desire to live with Dad. Or, if Dad promised the child a car if he “picked Dad,” again, the judge will not likely listen to the child’s desire. However, if the child wants to go live with Dad because Dad’s house is within walking distance of the natatorium and the child is a competitive swimmer, then the judge might well listen to the child’s wishes.

Prior to September 1, 2009, the law allowed the child to file a written preference as to where she wants to live. Many judges disfavored this law and the practice of some lawyers representing a parent in obtaining the child’s signature on the written preference. Due to the disfavor and frequent abuses in that system, the Legislature eliminated the written preference statements effective September 1, 2009. HB 1151 81st Legislature, S3. A child may now express his or her preference, but not in writing. Upon request of a party at a trial hearing, a judge must interview in chambers a child 12 years or older. As one judge astutely noted, the law may require the judge to talk to the child in chambers, but the law does not tell him what to ask. For a judge who disfavors “putting kids in the middle,” even making such a request may harm a parent’s request for conservatorship.

FAQs During Divorce

Posted by Ashley Russell on August 1, 2011

The divorce process is not an easy one, nor is it uncomplicated.  Divorce can bring up many questions that may not have been considered prior to filing.  Divorce Magazine did a piece on FAQs during divorce.  I offered my responses to a couple of these questions.

What if we decide we want to reconcile?

            Second thoughts after a divorce has been filed are not uncommon.  This is an important question to ask.  While a case is pending, couples often decide that they would like to try to reconcile and work out their differences instead of pursing the divorce.

            If both parties agree that they want to stop the divorce, the answer is an easy yes.  In this situation, the parties can agree to nonsuit their divorce action and the case will be dismissed by the court, no questions asked.  The document filed with the court is called a Notice of Nonsuit.

            Likewise, if only one spouse has filed affirmative pleadings in a case, that spouse can unilaterally decide to nonsuit their claims, thus stopping the divorce.  However, since a party’s Notice of Nonsuit only dismisses that party’s claims.  One party can not unilaterally stop a divorce by filing a nonsuit because the other party’s claims will still remain pending. 

            Once a party files a Notice of Nonsuit, their claims will typically be dismissed without prejudice.  This means that if the parties want to re-file their divorce at another time then they are not prohibited from doing so. It is important to note that dismissal is final, by a Notice of Nonsuit or otherwise.  It does not pause the divorce or hold it while the parties make up their minds.  In the event attempts at reconciliation are unsuccessful, the parties will have to re-file their divorce action.

           It is possible to continue hearings or trial dates while parties attempt reconciliation, but the court is not likely to postpone the resolution of a case indefinitely or allow the case to remain on the docket for years.   While the litigation can be stalled for a little while, at some point parties attempting reconciliation will have to decide whether to nonsuit their case and dismiss the divorce or whether to move forward with ending their marriage.

 

 Will I get 50% of our family assets?

            Not necessarily.  While many people believe that they will get “half of everything” upon divorce, an equal division of the community estate is not required in Texas.  Although the property division often ends up at an award of roughly 50% of the community estate to each party, this is not the legal standard.  Instead, the Texas Family Code provides for a “just and right division” of the community estate. Specifically, in a decree of divorce, the court is required to order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

            Absent an agreement of the parties, the court is afforded broad discretion in deciding how to divide the community estate in a just and right manner based upon the evidence before it.  While the division will typically start at 50/50, the court will then consider various factors that can shift the percentage of the martial estate awarded upon divorce in favor of one spouse or the other in order to each a “just and right” division.  A property division weighted more heavily in favor of one spouse than the other is referred to as a “disproportionate division”.

            Among the factors that a court will consider in arriving at a just and right division are the following: (1) fault in the breakup of the marriage; (2) the spouses' capacities and abilities; (3) benefits which the party not at fault would have derived from the continuation of the marriage; (4) business opportunities of either spouse; (5) relative physical conditions; (6) relative financial conditions of the parties, including their obligations and need for future support; (7) disparity of ages; (8) size of separate estates; (9) the nature of the property; (10) debt owed by a spouse; waste or concealment of community assets; (11) disparity of earning capacity; and attorney’s fees.  This list is not exclusive and the court can consider other evidence it believes to be relevant to its decision.

            While this seems complicated, in a no-fault divorce where the parties are of similar age, in similar health, and have roughly equal incomes, debts, separate property, and have committed no real wrong doing during the marriage, then the court will typically divide the community estate in a roughly equal manner.  It is situations where one party has extenuating medical circumstances, the parties have disparate incomes or earning capacities in the future, or one party has been the victim of cruel treatment or abuse, for example, that the division will have to favor one spouse over the other in order to be just and right.