Through the eyes of a child: impact and measures to protect children in high-conflict family law litigation.

• Author: Savard, Susan W.
• Position: Florida

A lawyer confidently strides into the courthouse. To the client, it is like being wheeled into the operating room for the removal of cancer. Fear, gut-wrenching uncertainty and ignorance control the client's emotions, as he or she realizes that his or her future or that of a child, is being controlled by two lawyers and a stranger wearing a black robe instead of a surgical mask, all of whom are engaged in procedures that are completely foreign. Added to the foregoing is the embarrassment or humiliation of public airing of deeply personal matters. If such a system reduces otherwise strong, self-directed adults to depressed and possibly poorly functioning individuals, what does it do to a child who is the subject of such proceeding? Even adult children of the parties are grievously traumatized by their parents' acrimonious dissolutions. What chance do minor children have to escape the fall-out when they are the subject matter? (1)

High-conflict family law litigation is extremely detrimental not only to the parents, but also to the children involved as well. The negative impact of this conflict flows to every aspect of the case. This article is intended not only for the family law practitioner, but also for litigants in family law cases in which highly contested issues involving children arise. Each parent's affirmative obligation to encourage and nurture the relationship between the child(ren) and the other parent will be discussed. The harmful psychological effects on children resulting from high conflict or protracted litigation involving children's issues will be explored, and an alternative to litigation, through the newly enacted statutory authority for parent coordination, will be addressed.

Each Parent's Obligation to the Other

It is a basic proposition that a parent has a natural legal right to enjoy the custody, fellowship, and companionship of an offspring. (2) The only limitation to this rule of parental privilege is that between parent and child, the ultimate welfare of the child must be controlling. (3) The obligation of each parent to encourage and nurture the relationship between the child[ren] and the other parent is constitutional in nature. This obligation flows not only to the other parent, but also to the child[ren]. In Schutz v. Schutz, 581 So. 2d 1290 (Fla. 1991), the Supreme Court of Florida reviewed an order requiring the mother to "do everything in her power to create in the minds of [the children] a loving, caring feeling toward the father ... [and] to convince the children that it is the mother's desire that they see their father and love their father." (4) The order further provided that a breach of the obligations imposed "either in words, action, demeanor, implication or otherwise" would result in the "severest penalties ... including contempt, imprisonment, loss of residential custody or any combination thereof." (5) The record reflected ongoing acrimony and animosity between the parents. The mother challenged the order on First Amendment grounds alleging that it violated her right to freedom of speech.

The Florida Supreme Court interpreted the order as requiring the mother to make a good faith effort to promote frequent and continuing positive interaction between the children and their father and to refrain from doing or saying anything to defeat that interaction. She could meet this obligation by encouraging the children to interact with their father, taking good faith measures to ensure that the children visit and otherwise have frequent and continuing contact with their father, and refraining from doing anything likely to undermine the relationship naturally fostered by such interaction. (6) The Supreme Court interpreted the order such that it did not impermissibly require the mother to express opinions she did not hold.

Following an analysis of the balance between the mother's right to free expression against the state's parens patriae interest in assuring the wellbeing of the children, the court found a substantial state interest in restoring a meaningful relationship between the children and their father, thereby promoting the best interests of the children. (7) Any restriction placed on the mother's freedom of expression is essential to the furtherance of the state's substantial interests. Affirmative measures taken by the mother to encourage meaningful interaction between the children and their father would be for naught if she were permitted to contradict those measures by word or deed. (8) A parent has a constitutionally protected "inherent right to a meaningful relationship with his children." (9) In this case, the father's personal rights were aligned with the state's interest in promoting meaningful family relationships.

In addition to the constitutional implications of hindering the other parent's relationship with the child(ren), there may well be contempt consequences as well. A parent can be held in contempt of court...