Practical aspects of parenting conflicts: preparing parents for litigation.

• Author: Goldenberg, Renee
• Position: Florida

The Shared Parental Responsibility Act became law in 1982,15 years ago. The legislature established a unique concept--shared parenting. The concept contemplated a new era in Florida regarding the law as it relates to children--no more "care, custody, and control." Both parents retain their legal rights and responsibilities to parent and share time with their children, and do not just receive "visitation." Of course, with no funding for education of the public, the lay person has been assumed to know the law, when in reality the education as to the law is provided by the practitioner and the judge on a case-by-case basis. The intent of this article is to provide practical assistance and ideas for education and implementation of the concepts of shared parental responsibility, which ultimately will serve the best interests of the child.

Psychology of the Litigant

The process of dissolution of marriage is multidimensional, of which a legal proceeding is only one dimension, according to "The Six Dimensions of Divorce," in the Bohannan Model (legal, emotional, psychological, community, economic, co-parental). The emotional stages of "wounding and healing" which comprise the psychological process of dissolution (preparation, separation, off the wall, adult adolescence, mature identity, and life style) affect the parties' judgment. A parent preoccupied with his or her own emotional survival and the reordering of his or her life may not be acting in a child's bent interest. The parent may be totally unaware of how the dynamics of these emotions not only detrimentally impact upon the child and the parties' ability to co-parent in the future, but may also damage the party's case in court. It is important to educate the parent and recommend interventions to the parent prefiling or early in the litigation.(1)

Dissolution of marriage is one of life's most stressful experiences.(2) The Fifth District Court of Appeal in Kunzweiler v. Kunzweiler, 698 So. 2d 1261, 1254 (Flat 5th DCA 1997), explained:

Only the death of a spouse is generally reported to be more stressful for adults than divorce; separation and divorce are consistently rated more stressful than going to jail, losing a job, personal injury, illness, mortgage foreclosure, and all other distressing life experiences except the death of a spouse. Lynn Wardle, "No-Fault Divorce and the Divorce Conundrum," 1991 B.Y.U.L. Rev. 79, 101.

See also Elizabeth Van Arsdale, "Reduce Stress by Redefining Your Role," 16 WTR Fam. Advoc. 28 (1994)(divorce is one of the most traumatic events that can happen to a person, second only to the death - of a loved one). For even healthy personalities, divorce is a severe challenge. For persons with significant pathology, the stress of divorce can cause an emotional crisis. Sam Marguiles and Anya Luchow, "The Initiator and the Non-initiator of a Divorce," 14 No. 4 Fairshare 3 (April 1994). See also Wardle, 1991 B.Y.U.L. Rev. at 126 (divorce causes, exacerbates or unleashes a host of serious psychological problems).

In a civil court of equity, with the trial judge sitting as the sole trier of fact and law, the role of the judge is not that of a passive observer. The presentation and credibility of the parent is a paramount consideration, and the attorney should recognize that he or she may now be representing a parent who may be impaired. If the parent is impaired, the attorney should consider how that client's behavior may be viewed by the judge. As discussed in Nateman v. Greenbaum, 582 So. 2d 643 (Flat 3d DCA 1991):

It is recognized that a "judicial officer is the sum of his past: who is expected to be influenced by real life experiences....Application of that experience in weighing the facts and credibility of witnesses is not inappropriate conduct for a judge in a nonjury trial .... To the contrary, it was held in In re Int'l Business Mach. Corp., 618 F.2d 923, 930 (2d Cir. 1980), ...." Because his fact-finding is based on his estimates of the witnesses, of their reliability as reporters of what they saw and heard, it is the judge's duty, while listening and watching them, to form attitudes toward them. He must do his best to ascertain their motives, their biases, their dominating passions and interests, for only so can he judge the accuracy of their narrations.... He must cannily penetrate through the surface of their remarks to their real purposes and motives. He has an official obligation to become prejudiced in that sense. Impartiality is not gullibility. Disinterestedness does not make child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.

If the parent is not aware of or in control of his or her emotions, conduct, and behavior, a parent needs not only to be educated as to the process, but also needs to be referred to interventions, i.e., psychological counseling, support groups. In addition, because perception is altered by emotions, the parent may be viewing the other party, and attributing actions and behaviors to the other party askew, causing the parent not to be believable in court. The attorney needs to expand the "counsellor at law" role and serve as a "reality check" for the parent. It is up to the attorney to inform the parent and the witnesses of the importance of their demeanor and credibility, to prepare them extensively for the appearance in court, and to control their conduct in court. See Judge Glickstein's concurrence in Tessler v. Tessler, 539 So. 2d 522, 523 (Fla 4th DCA 1989).

At the first client interview in which the attorney is made aware that parental responsibility and/or primary residence is in issue, the attorney should provide tasks for the parent. The tasks have the dual purpose of educating the attorney and client about the case and preparing the case and the client for trial immediately. For example, the attorney should have the client complete the parental responsibility questionnaire published by the Family Law Section in the continuing legal education publication, Florida Dissolution of Marriage. This questionnaire, compiled by this author, provides three sections: The first third asks the parent to provide background information regarding the child, which, if it cannot be completed by the client or is incomplete, should raise questions as to motivation of the client and actual involvement in the child's life; the second third educates the client as to the law; and the third section prepares the case for litigation and identifies independent witnesses early, i.e., day care workers, teachers, pediatrician. Having the parent keep a daily diary of the parent's involvement in the child's life as a business record, verifying information and reporting, and providing a copy to the attorney on a regular basis keeps the attorney informed and involved with the parent and the progress of the case and allows the attorney greater control over the parent's actions. F.S. [Section] 90.803(6) can arguably be used to overcome the hearsay objection to the diary's admissibility as a business record.

Since there is no licensing requirement prior to becoming a parent and everyone can improve their parenting skills, it may be appropriate to recommend that the parent attend the court-required Children and Divorce course, or its equivalent, immediately at the filing of the litigation, and even attend additional parent effectiveness training courses. The attorney may want to have the parent and/or parent's home evaluated prefiling by psychological and social worker professionals and begin rehabilitation of the parent prefiling or early in the case. There is a saying that "one does not win a `custody' battle, the other side loses it." This results from the opponent's lack of control over...