Defending marriage vs. unwanted dissolution, turning weakness into strength: Tim Kaine's first cases
"Diane married James against [her] guardian’s wishes and [the guardian] wanted to get the marriage annulled. Kaine represented Diane in a lawsuit to preserve her marriage. He fought the guardian and won, learning that the guardian wanted Diane’s disability checks.
“'What started off as a marriage case in Richmond Juvenile and Domestic Relations Court ended up as a criminal trial against the guardian in federal court,' he said.
"Kaine said, 'I learned a lot from Diane.' including the responsibility of law practice and that what a lawyer does really matters.
“'And I also learned a critical lesson that served me well throughout my career— whatever the issue seems to be at first, look deeper. The marriage lawsuit, ostensibly filed to protect a mentally disabled person, was really the guardian’s effort to continue the subjugation of Diane and the theft of her disability payments,' he said.
The article, about Kaine's talk at William & Mary's law school graduation, also includes some vital advice for lawyers and pretty much everyone else:
At one point Kaine said he sat at his computer with a mental block. Then he recalled a line from Second Corinthians, “in my weakness is my strength.” He said he understood then that “you can’t flee from your weaknesses but have to embrace and own them as a natural part of being human. I was afraid. But somehow, just admitting that to myself helped me jump back into the work and crank out all the pleadings and advocate at all the hearings right up to the last day.”
Kaine said, “This is a lesson that I come back to again and again in my life. Fleeing from your weaknesses or pretending that you don’t have them makes you weak. But acknowledging your weaknesses, which can be very hard to do, in one of life’s great mysteries, can make you strong.”
He closed his remarks with a promise to the new grads: “My clients taught me lessons that I still reflect on today, long after I gave up law practice because of the demands of full time public service. They changed me as a lawyer and they changed me as a person. And they will change you too,” he said.
Carl Forsling repeats several often-heard, and quite true, observations about how the military is bad for marriage, plus some insights that are original but intuitively very convincing once he points them out. Which explain why it's also so hard on divorce.
"Divorce — it’s no stranger to those in the military. At the same time, the military is a very tradition-minded institution, so divorce is often treated like the family secret no one talks about. ... some commanders have very black and white attitudes in regards to marriage. ... surprisingly prevalent in an institution where divorce is commonplace. The military attracts strong personalities, and they tend to either be very religious with very traditional views of morality or very not."
Very true. I'm more familiar with the strong personalities who are very non-traditional about marriage -- well, they may be traditional and sentimental about it in some ways, but in ways that get them married five times and divorced four times, if they're lucky. And hopefully with a divorce between each marriage. Or divorced early and married never again. Sometimes getting taken advantage of royally, as they see it, in their first divorce, and then becoming determined that next time, and every next time, they will be the ones in the relationship with the power, the knowledge, the leverage and the manipulation. Whether that's in a divorce or in devoutly unwed cohabitation.
On the other hand, there are many who are honorable and generous to a fault. Or who want what's best for their kids even if it isn't best for themselves.
Many, whether honorable or manipulative, are gung-ho and unashamed of whatever course they're pursuing, in divorce, adultery or whatever. If they're war veterans, they usually have a sense of entitlement, understandably. The military rightly tells them that they and their jobs are important, and that the civilian world should accommodate them. They may see divorce and other family breakups as just part of the petty civilian-life BS that the military requires them to take care of, but that could never be compared in importance to their mission or their careers.
And yet again, there's another side of this: Timid careerists who are always looking over their shoulders. Junior officers who are expert at creating paper trails to shift blame and responsibility to others, and who think that will work for them in family court.
I've only recently begun to see the very religious and neo-traditional officers and servicemembers the author talks about, but I know they have been out there for quite a while now.
He has a refreshing point of view on a practice that is widespread, widely advised, encouraged by regulations, but which also can make civilian courts get really mad at spouses and treat them like stalkers who are trying to destroy the careers they have benefited from:
"On top of that, some hurt soon-to-be former spouses have in the past called up commanding officers and sergeants major, and in today’s “pro-family” military, those leaders usually picked up the phone to an earful of often highly exaggerated drama. Sometimes those senior leaders rightfully take it with a grain of salt. Other times, service members get chewed out or worse based on the spouse’s account of events that may or may not have happened as described. ... Many units now have “human factors” or “commander’s safety” councils, wherein members’ personal lives are aired out in the name of “safety.” Guess who gets talked about in those? In today’s environment, where the phrase “perception is reality” is too often said without irony, too many service members end up with their reputations tarred."
(That's not just "in the past", by the way.)
As for two well-known factors that weaken military families, he describes them freshly and eloquently:
"Service members often marry young. Part of that is the rapid maturation the military forces on people, part of it is undoubtedly bad decisions based on housing allowance rates, and part of it is ironically likely the military’s old-fashioned views on marriage. Whatever the reason, marrying young is not a good indicator of matrimonial success."
"Add in the deployments, long hours, etc., and things don’t bode well for military couples. There are some marriages that thrive despite the challenges — as those in the military are fond of saying, 'What doesn’t kill you makes you stronger.' For others, though, what doesn’t kill them severely damages their relationships."
Another factor Forsling doesn't mention: The continuing reluctance to seek mental health treatment for reputation and career reasons. That has been a huge problem in many of my cases.
The military has made a big push to be more family friendly in recent years. ... As it tries to be better for traditional families, it needs to improve the culture for non-traditional ones, as well."
That's so true. Our society needs to understand that being pro-family means strengthening intact nuclear families, but also honoring all family bonds and strengthening what's left of "broken" families too.
OK, not the whole truth, but the wholest truth I've ever seen in one place in a child custody case, is in the guardian ad litem report (via Michigan international family lawyer Jeanne Hannah; may no longer be online) These GAL reports are generally not made public, but any damage from that is minor compared to what all members of this family have inflicted on themselves for the past five years.
[UPDATE: The court later did exactly what the GAL report, and this blog post, suggested! Here's the latest: "Dad in bitter divorce wants mom blocked from contact", Detroit News, 9/9/15]
The GAL report DOES NOT recommend jailing the children. It recommends a far simpler and more direct solution: immediately giving the father visitation with each of them separately, one on one. Supervised, but reluctantly and only to protect the father from accusations. The court in this case has imposed endless￼ shows of governmental force and therapy on these children, who were not impressed by any of it. But in my experience, what really works is placing them directly with the other parent, and in many cases, changing custody permanently. Many children in divorces will go to extremes to do what they think pleases and aligns with the parent who appears to have the power and control. And when that control changes, they can turn on a dime.
Almost every experienced family lawyer has had several cases like this. Something to remember when we are told that the government and society should not care whether a marriage can be saved.
(There has been a lot of very informed discussion on family lawyers' discussion forums, including very prominent leaders in the profession, and they almost all sympathize with the father although they don't support jailing the kids. I "red shirted" this posting while I got permission to quote some of the best comments from the lawyers' listserv. But that effort has languished what with new family law news coming along, and a whole lot of work on an upcoming custody trial, an appeal brief, a book revision and preparing materials for a continuing-ed seminar. I hope to post them in the future the next time this is in the news.)
Meanwhile, Maryland family lawyer and family law professor Dawn Elaine Bowie, an early local advocate of Collaborative Divorce, makes a similar point, but not exactly the same, in wonderfully brief and to-the point fashion:
By Dawn Elaine Bowie, Owner and Managing Partner, Maryland Family Law Firm, L.L.C. -- Sep 6, 2015
Study: 50-50 custody far less stressful for kids than sole custody. Here's why, and how to make it work.
"This Divorce Arrangement Stresses Kids Out Most", by Mandy Oaklander in TIME Magazine, summarizes a new study: Based on national data on almost 150,000 12- and 15-year-olds' psychosomatic health problems, including sleep problems, difficulty concentrating, loss of appetite, headaches, stomachaches and feeling tense, sad or dizzy; "Kids in nuclear families reported the fewest psychosomatic problems, but the more interesting finding was that students who lived with both of their separated parents reported significantly fewer problems than kids who lived with only one parent."
Study author Malin Bergström, PhD, said: “We think that having everyday contact with both parents seems to be more important, in terms of stress, than living in two different homes.” “It may be difficult to keep up on engaged parenting if you only see your child every second weekend.” Having two parents also tends to double the number of resources a kid is exposed to, including social circles, family and material goods like money. “Only having access to half of that may make children more vulnerable or stressed than having it from both parents, even though they don’t live together.”
Based on my 20 years of work in divorce and child custody, another major reason also seems obvious to me. All the inconveniences of "shuttling" between two homes, as real and bothersome as they are for many kids, are trivial compared to the disadvantages, pain and insecurity that comes from losing one parent from a fully parental role in the child's life. And when one parent take a lesser role, "he that hath little shall lose what little he hath," as the separated parents' competing employment needs, relocations and new relationships increasingly conflict with, and take priority over, co-parenting.
That is why I support 50-50 joint custody when it's possible. I don't think it's necessarily the best, most enjoyable, day-to-day arrangement for most children: in our current social arrangements, in the U.S., most mothers "naturally" do more of the parenting and are more attuned to the children's needs. But in my own experience and in the statistics, so many divorces lead to a parent completely disappearing from the child's life, and many more see one parent marginalized, vilified, infantilized, and/or disempowered. And children perceive that loss of a parent who can actually act as a parent, and of course it causes major stress for them. I think the 50-50 form is probably the most stable because, in it, neither parent assumes they have the unilateral power to make the changes which in turn make it practically necessary to reduce the other parent's role -- such as moving to a different school district or a faraway state.
But I am repelled by anyone who gushes that 50-50 joint custody, or any other custody arrangement, is just wonderful for kids. Any custody arrangement is a poor substitute for an intact family.
The study is Fifty moves a year: is there an association between joint physical custody and psychosomatic problems in children? (28 Apr 2015) by Malin Bergström, Emma Fransson, Bitte Modin, Marie Berlin, Per A Gustafsson, and Anders Hjern. J Epidemiol Community Health doi:10.1136/jech-2014-205058
But it still takes work. "9 Rules to Make Joint Child Custody Work" by Kate Bayless on parents.com gives really good, tough-minded advice that would have prevented a lot of my clients' problems. Most of it is about how to act when working out a custody agreement, not how to implement it. Excerpts of each of the 9 Rules:
- "Badmouthing the ex will be internalized by the child because they are made up of both you and your ex."
- The divorce was about you, but custody is about the kids ... not about getting exactly what you want, or even demanding equity at any cost. ... "what is best for the child is not always what feels good for you as a parent."
- Be realistic about your own schedule and commitments.
- Choose a custody arrangement that accommodates your children's ages, activities, and needs.
- A bad spouse doesn't equal a bad parent. Almost always, "it is unquestionably best for children to have frequent and continuous contact with both parents."
- Find a method of communication that works for you and your ex.
- Pick your battles. "School choices, vacations, and parenting time are worth the fight. Things like food choices ... are not worth the fight." Save your energy and good will with your ex and the courts for those things that do matter.
- Let your children feel heard. But also make the best decision for their well being.
- From time to time, review the arrangement and adjust as needed.
Great advice, and lots of fun. Big caveat: I think the author an associate of Tony Robbins, although on the other hand she writes and speaks, very well, in major, mainstream publications and conferences.
By Cloe Madanes in Psychotherapy Networker
I'm so proud and lucky to be training to work as a divorce lawyer and mediator with couples in discernment counseling. It fills a generations-old need so fundamental that people have turned to all kinds of crummy substitutes over the years with demoralizing results -- marriage counseling that turns into divorce counseling and leaves one spouse feeling that that's what it was all along; "trial separations" that do the same and escalate the divorce conflict, mediations where the spouses and mediator have five different ideas of what they're meeting for. "DC" gives a safe space where people can weigh both options without getting into actions, threats and misunderstanding that drive people apart and quickly make divorce inevitable and nasty.
March 18th Webinar - Discernment Counseling for Couples on the Brink with Dr. Bill Doherty!
Learn about an innovation in working with couples on the brink of divorce where one spouse is leaning out of the marriage and the other wants to save it. This is a common presentation to marriage therapists, clergy and divorce lawyers, but there have been few protocols for helping these couples. Discernment counseling is a structured way to help "mixed agenda" couples decide whether to work on preserving their marriage or move toward divorce, based on a deeper understanding of what has happened to their relationship and each person's contributions. Bill Doherty has developed discernment counseling protocols for couples therapists (five sessions) and for clergy (one session and referral), plus an "ambivalence" protocol for family-friendly divorce lawyers and mediators.
- Identify the special challenges that mixed agenda couples face when they see helping professionals.
- Describe how couples therapist use discernment counseling to help these couples decide on the next step for their relationship.
- Describe how clergy use their own version of discernment counseling.
- Outline an ambivalence protocol for divorce lawyers and mediators who see mixed agenda couples.
In some cases, it's pretty simple. The child will still have two parents if one parent gets primary custody, but not if the other parent does. That factor does not outweigh some even more horrible things that sometimes happen to children, but it outweighs most other factors such as which parent and which home does some parenting tasks better, or is what the child is already used-to.
The Australian judge and lawyers in the story below described such a move as "drastic". But it's not that drastic, in my experience in the U.S. Changing custody requires first, a relevant, material change of circumstances, and then a wide-open evaluation of what's in the child's best interests under current conditions. That should include: what example do the parents set for the children about how to treat other people and what to prioritize? Should the children learn that alienating, vicious, deceptive borderline-personality behavior works to meet one's goals? Is it healthy for a parent to lie to kids about the other parent to manipulate their emotions? And most important of all, is it better to grow up with two parents, or one manipulative, shortsighted, selfish, immature parent?
One big caveat: When there are abuse accusations, the time to diagnose and counteract parental alienation is AFTER investigating and resolving the abuse issue. And alienation, likewise, should be proven before it's punished. Fortunately, in most cases it's obvious and the alienating parent doesn't try hard to hide it, and may even proclaim it.
BY KAY DIBBEN in THE COURIER-MAIL, NOVEMBER 29, 2014
Subtitle: SELFISH separated parents who try to stop their children having a relationship with their former partners are having the kids taken off them by courts.
Caption: This is a warning that parents need to be child-focused in every parenting decision they make and not self-focused, says family law specialist Deborah Awyzio.