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What you need to know about Divorce


H. Children

"You can divorce your spouse but not your children." - Aubrey F. Kaplan

(i) Child Custody: Sole and Joint. Historically, children were considered the chattels of their fathers. In divorces prior to 1920, their custody was typically awarded to him. The emergence of Freud's views on the importance of a mother in a child's early development gained wide acceptance in the 1930's and, for the next fifty years or so, switched the courts' inclination to award custody to the mother, with the father given visitation rights. This gradually came to mean "every other weekend and one night a week".

Under the influence of the women's movement, custody rights began to shift again in the last ten years: women in the workplace demanded that their husbands take a more equal role in child care. Many men responded positively by becoming more and more involved with their children.

Today, the current trend is toward equality between mother and father in child custody decisions. A mother is no longer automatically assumed to be the parent with whom the child should live, and a father has a greater chance of winning custody.

There are two types of litigation with regard to child custody: Original Custody Determinations and Change of Custody.

In Original Custody Determinations, one parent does not have to prove the other unfit in order to gain custody. They must demonstrate that their retention of custody is in the child's best interests. Some of the facts which the court considers in determining what is in the best interests of the child include the sincerity of each parent's desire to have custody; the wishes of the child; the interaction and relationship between the child and a parent; siblings; the child's adjustment to their home, school and community; the mental and physical health of the individuals involved; past physical violence on the part of each parent; the on-going occurrence of domestic abuse; and the willingness and ability of each parent to encourage a close and continuing relationship between the other parent and the child.

In Change of Custody Determinations, the court reviews a change in circumstances only after the original custody judgment has been issued. A change in custody is reviewed by the court only if there is a substantial change in circumstances regarding the child's health and welfare. Also, the party seeking the change must prove, through clear and convincing evidence, that the child's best interests are being considered. Stability is sought by not allowing any changes in the custody arrangements for two years after the original determination of custody except in extreme cases of abuse which constitute a serious endangerment to the child.

Having custody of a minor child can mean Sole Custody, which is the custodial parent's right to make major decisions affecting the child's life (such as medical care, education and religion), and normally includes physical custody, which is the actual possession and control of the child subject to reasonable visitation by the non-custodial parent.

Typically, the non-custodial parent is granted visitation rights unless the court feels that such visits would be detrimental to the child. Parents may make visitation agreements themselves, but if a friendly agreement cannot be reached, the court sets a schedule for visitation. The best practice is to have a detailed schedule that states specifically when the child will be with each parent. Grandparents may also be allowed some form of visitation.

Visitation is modifiable if a court determines that changing circumstances warrant a modification.

In 1985, the Illinois General Assembly adopted a statute which provided for Joint Custody. The law requires that a Joint Parenting Agreement spells out "each parent's powers, rights and responsibilities for their personal care of the child and for parity in major decisions such as education, health care and religious training."

The decision for joint custody requires a stipulation that both parents are fit and proper persons to exercise custody over the minor child(ren) but generally provides that one parent will be in possession of the children a majority of the time. The parent with whom the child spends the majority of their time is referred to as the primary physical residential parent and the other is referred to as the non-physical residential parent. The physical residential parent is generally entitled to receive child support for the care and support of the children from the non-physical residential parent.

In the event the parents fail to produce a Joint Parenting Agreement, the court may enter an appropriate Joint Parenting Order if it determines that Joint Custody would be in the best interests of the child, taking into account the ability of the parents to cooperate effectively and consistently with each other in matters that directly affect the joint parenting of the child; the residential circumstances of each parent; and all other factors relevant to the child's best interest.

The 1985 law was designed to avoid custody battles and to provide stability to divorced families. When custody is disputed, the divorcing couple must attend several sessions with a court-appointed mediator who sees the parents and children, attempts to reconcile the parents' wishes, and then makes a recommendation to the judge. Psychological examinations of the parties, home studies and the input of attorneys appointed by the court for the minor children may also be considered by the court in making awards of custody to one party or the other when these issues cannot be amicably decided.

It is important to note that not all custody battles are sincerely motivated. Unfortunately, the issue of custody is frequently used by one spouse to put pressure on the other and to induce their acceptance of a financial settlement less favorable to them or to delay a divorce. In these cases, the input of your attorney is crucial to help you maintain a legitimate position and to reach a decision that is financially fair and, of course, in the best interests of your children.

(ii) Parenting Through and After Divorce. Sometimes parents are so absorbed by their own pain that they do not see their children struggling to cope with the divorce.

Children typically suffer pain, confusion and insecurity when their parents separate. They are hurt by outbursts of anger, bitterness, a lack of respect, an inability to communicate, and the overt hostility that can flare up when "mom and dad are fighting again".

Despite all the obvious signs that their family is disintegrating, most children secretly harbor - sometimes for years - fantasies that their parents might reconcile. At least, they want their parents to be friends.

Children's ability to interpret real-life events are limited. In a difficult divorce situation they face the dilemma of making sense out of views communicated by hostility, fear and distrust.

Because of the often-profound neediness of their distressed parents, children may become urgently concerned about the emotional and physical well-being of a parent.

Because they are often the centerpiece of their parent's arguments, to varying degrees these children feel responsible for the disputes yet feel helpless to control or stop the conflict.

When parents continually put each other down, children are clearly concerned with the problem of who is "good", who is "bad", and with whom they should identify.

Children have a very limited store of coping strategies:

a) Infants and toddlers are most vulnerable to changes in daily routines.

Very often young children need a stable, consistent and available parent who provides a safe and conflict free environment. Loss of previously achieved developmental milestones, intense and unremitting anger, or general withdrawal and apathy are all signs that an infant or toddler may be having difficulty.

b) Preschoolers may regress in their behavior or fail to attain age-appropriate development (such as toilet training, sleeping alone, improved language skills, emotional independence, and participation in activities with peers).

c) Early elementary school children have intellectual development that allows them to understand more issues of their parents' divorce. Hostility between parents disturbs the elementary-age child's sense of family and they often worry about being abandoned by the
custodial parent.

d) Later elementary year children are apt to experience internal conflicts about the divorce. School-age children feel they must "take sides". Girls may become more solicitous at home and at school, whereas boys are more apt to experience increased aggression and academic problems. These children may complain of aches and pains, withdraw socially or wish to spend an inordinate amount of time with the custodial parent.

As with the younger groups, it is the intensity and duration of the symptoms and the degree to which they interfere with normal development that should alert a parent to need for professional help. A mental health
expert may help identify and respond to these stresses and help the child get back on track developmentally.

e) Teenagers from divorced homes are often thrust out of the family before they are ready. As a result of divorce, adolescents must confront new and complex views of their parents before they are cognitively or emotionally able. They often blame themselves for the divorce, feel guilty about it, and are especially vulnerable to parental needs for loyalty. They easily fall into the role of messenger or spy in order to cope. The absence of a father can have a significant effect on adolescent boys and girls. For boys, the lack of a male role model may cause difficulty in school performance, in controlling aggression, and in appropriate expressions of competitive drives. For girls, emotional separation from mothers becomes even more difficult, particularly if they had little interaction with their fathers. Commonly, adolescents become depressed in response to stress. Although depression may occur in mild forms, it can also manifest itself in suicidal thoughts or behavior which need to be taken seriously. Adolescents who act out sexually or run away are also expressing their distress. These problems may need intervention from a mental health professional.

When choosing a therapist, consider their experience with divorced families and co-parenting. The most important role of the therapist is to provide a safe, neutral place in which your child may express their feelings about the divorce.

The therapist will keep parents informed of the child's progress in therapy and important issues through periodic meetings or phone calls.

Parents should keep in mind that with these issues, the child is best served when both parents work together.

If a therapist will be interviewed by a judge or attorneys appointed by the court for the child, they will speak to the child often eliciting the child's feelings and concerns. The therapist may ask the child what they would like disclosed. If a parent's attorney seeks information or an opinion regarding the child, the therapist may decline in an effort to remain neutral.

You may also want to work with a therapist of your own to help separate your feelings from those of your child. Your therapist can help you to develop empathy for your child's feelings and communicate more effectively with your child.

Parenting classes may also be helpful. You can be a more self-assured and effective parent if you are consistent about discipline, established routines and structure that supports your child. Take a class designed specifically for divorced parents to learn how divorce impacts parents and learn how divorce impacts children and how to foster their health adjustment.

Finally, show respect to your child's intelligence and needs as an individual:

a) Avoid involving your child in any conflict with your spouse.

b) Help your child maintain a positive relationship with their other parent; give them the permission to love that parent.

c) Show respect for the other parent in front of the child; do not make derogatory remarks.

d) Honor your time-sharing schedule. Always notify the other parent if you will be late or must miss a visitation. Children may view missed visits as rejection.

e) If you are the non-custodial parent, do not fill every minute of visitation with special activities. Children need at-home time with you.

f) Do not use children as messengers or spies. Don't pump them for information about the other parent. Don't send child support through them.

g) Strive for agreement on major decisions about your child's welfare and discipline so you are not undermining the other parent.

h) Use common sense. "Don't make a mountain out of a molehill" and "Do unto others as you would have them do unto you".

There is no question that children do best when they have two parents who work cooperatively. Do not let your opinion or self-righteousness become more important than your child's welfare. If you and your spouse disagree, ask yourselves: what does the child want? Working out a compromise requires great patience and generosity of spirit. It's hard work, but your child is worth it.

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