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Getting A Divorce? Why You Should Not Just Fight It Out

by Mimi E. Lyster

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There are times when a custody fight appears inevitable. While you, of course, are willing to be reasonable, many parents believe that the other parent either cannot or will not return the favor, and that a court fight is inevitable. Many have traveled the adversarial road, and probably for many of the same reasons. Constant fighting, arguing and blaming in a marriage or similarly committed relationship generally leads to more of the same while dissolving it. Unfortunately, the consequences of continuing this behavior can be dramatic, including protracted litigation, escalating costs, a dramatically reduced standard of living and significant damage to your children’s emotional well-being. Jim Melamed, a family law mediator in Oregon, calls these results “the parade of the horribles” - and appropriately so!

Custody Litigation is Unpredictable

While asking a court to solve resolve differences over custody and visitation is, unfortunately, the traditional approach, it is also highly unpredictable. If you doubt this, ask your attorney to guarantee, in writing, what will happen if you choose to litigate your custody and visitation issues. Part of this unpredictability stems from the fact that most parents believe their cause to be righteous. This means, of course, that at least half of all litigants are unpleasantly surprised by the judge’s decision. More importantly, litigation is unpredictable because judges are human beings who naturally differ in their approach to the kinds of problems that custody and visitation disputes present. In almost every case, some factors favor one parent and others the other parent. This means that even when two fairly “good” parents face off in court, both are likely to walk away dissatisfied.

Custody Litigation Is Usually Costly

If you choose to pursue litigation, the next hurdle will be figuring out how to pay for your court battle. If you decide to represent yourself, you will save on attorney’s fees, although the costs and time associated with filing, (which include doing the legal research as well as preparing and serving your court papers), can be significant, and the results you achieve may be less than you might have expected if you had been represented by an expert. Whether or not you hire an attorney, you may find yourself having to pay for testimony from a counselor or therapist prior to submitting any final report, or a custody evaluation. In addition, you will probably find it necessary to arrange for testimony from friends, relatives, school teachers, clergy members and neighbors.

Funding a child custody battle can be especially difficult in light of the fact that after separation or divorce, the income you once shared must now be used to maintain two separate residences. In addition to separate rent or mortgage payments, telephone service, food and other incidentals, you will be forced to duplicate the furniture, clothes and toys that don’t travel with the children, and meet the costs associated with the distance between your homes (such as travel and telephone). Many who separate or divorce are stunned by how quickly their money disappears!

Custody Litigation Damages the Children Regardless of the Result

As important as money is, the economic consequences of fighting in court can be dwarfed by the impact it will have on your children. Mental health professionals, the court system, attorneys, mediators and custody evaluators all agree on one thing—on-going parental conflict is generally the single most damaging stressor for children.

When conflict is obvious and occurs over extended periods of time, children feel torn between loving both parents, hoping someone will magically restore the marriage, and wishing that they could be anywhere but where the battle is raging! You may be surprised to note that this is true even when parents have most of their arguments out of their children’s presence. Because children have spent all of their lives living with and observing their parents, and because children rely on their parents to provide the basic securities of life, they develop an uncanny ability to “read” them. Children are exquisitely sensitive to each parent’s reactions when that parent hears the other parent's name, receives a call from the other parent, receives court papers from the other parent or calls the attorney.

Avoid Litigating Your Custody Dispute if at all Possible

Hopefully, after reading this, you’re convinced that litigation should most definitely be a last resort. Ideally, you should start by researching these issues so that you will have the tools and information you need to resolve your differences with the other parent in as friendly a way as possible and avoid litigation. Next, find out which professionals might be available to support you through the process, (such as attorneys, mediators, mental health professionals, paralegals or others), and develop a plan for resolving your differences which allows both you and the other parent to retain control over the decisions which result.

Parenting separately is challenging, but it is a job worth doing well. By making the commitment to put your children’s interests first, and by taking the time to educate yourself about your options, you, your children and the other parent may find that you can develop a parenting agreement that each of you feels is essentially fair.


Mimi Lyster has been active in dispute resolution, facilitated dialogue and decision-making, and strategic planning since 1981. She brings her experience as a mediator, trainer, facilitator, planner, and statewide court policy analyst to her role as administrator of the Court Planning and Litigant Services department of the Contra Costa Superior Court. This department encompasses the court’s strategic planning activities, the civil ADR program, the civil and small claims advisor program, the Virtual Self Help Law Center, and the court volunteer services program.  Previously, Mimi co-founded and administered a community mediation program, authored Building A Parenting Agreement that Works (Nolo Press), served on the California Dispute Resolution Council board, was a member of the California State Bar Legal Services Committee, and served as an appointee of the Chief Justice on the California Judicial Council’s Court Futures Commission.

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