Custody When Divorcing Parents Can’t Decide

What leads parents down that path? Are they to blame or is the system?

Internally, are these people inherently flawed? Is there something about their personal battle that blinds them to the damage they are doing to their children and themselves? Is there something about that battle that is so compelling that they can’t stop themselves?

Or are the factors external? Is there something that can be done in the system to encourage parents to resolve these questions between themselves with the help of suitable professionals first?

There are ways to support people, both internally and externally, in finding a way to make a decision about their children that is private, contained and self-directed. They don’t have to be at the mercy of forensic evaluators or courts that make decisions that are, just frankly, not in the best interests of children.

In a custody decision, a court looks to determine the “best interests” of the children (never mind the fact that it is generally not in the best interests of children to have strangers make these decisions or to be in the middle of such a dispute.)

Sometimes, courts get enamored of an idea and can value that idea over others, and that can hinder their ability to see the best course. For example, New York statutes value the ability and willingness of each parent to support the children’s relationship with the other parent. One parent’s willingness to support the other parent’s relationship with the children has become a super factor.

Case Study:

A teenager of divorcing parents wished to live with her father. Because the father had said something unkind or derogatory about the mother to his adult children, custody was granted to the mother – against the daughter’s wishes.

So what is it that we could do? We can structure the “system” to support the parents to make decisions about their children outside the courtroom even when they strongly disagree. I believe that in the Collaborative process – and also in mediation – with the proper supports put into place, the parents can make a decision about their children that makes sense to the children themselves.

Instead of parents saying, “We can’t decide. We can’t decide because we’re too angry, we’re too hurt, we’re too dysfunctional. Therefore we’re going to disempower ourselves as parents and give the decision-making authority to a judge, forensic evaluator, or a combination of those two, in order to have the decision be made,” parental responsibility should be advocated.

Why wouldn’t parents, who are seeking to divorce, do everything in their power to try to resolve their custody issues in a process that supported them – to make that decision even when, and maybe even especially when, it’s particularly challenging.


DID YOU KNOW?   Very, very few cases go to trial in any practice area, and child custody disputes are no exception.  The parties usually see that the outcome they control (settlement) is a better choice than the outcome they don’t (trial).  — Mary Katherine Brown, Child Custody Lawyer, Brooklyn, NY

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