This article is from Syd Sharples, LCSW, the current president of The Collaborative Law Institute of Texas and an Austin-based psychotherapist and collaborative divorce facilitator.
Earlier this month, the New York Times ran a fantastic, must-read article by Robert E. Emery titled “How Divorced Parents Lost Their Rights.” The premise of the article was that the legal system treat divorced parents differently than married parents, despite the increasing number of children in the United States who have divorced parents. These three paragraphs in particular highlight the disconnect that Emery sees between how the court system treats parents and present-day parenting:
“Married parents cannot sue each other. Divorced parents (or those who never married) can and do. Judges routinely decide where the children of divorced parents will attend school, worship and receive medical care; judges may even decide whether they play soccer or take piano lessons.
Judges do this because the law assumes that divorced parents’ interests in their children, unlike the interests of married parents, are not aligned. This is an outdated idea. The view of exes as opponents dates from an era when divorce and childbearing outside of marriage were rare. It is reflected in the legal language of a bygone time. One parent won custody, care and control of the children. The other became a visitor.
Today, close to half of first marriages end in divorce. About 40 percent of children are born outside of marriage. Custody is routinely shared by parents living apart. Many states have dropped the term “custody” altogether for more family-friendly terms. You no longer win or lose custody. You develop a parenting plan.”
Emery use the article advocating for parents to work together outside the court system to create a plan that factors parents and children into the equation. That’s exactly what collaborative law calls for.
In fact, he notes: “In a 2001 randomized study of child custody conflicts, I compared litigation and mediation, and found that six hours of mediation caused huge improvements in family relationships a full 12 years later. Other cooperative methods include collaborative law (where lawyers negotiate cooperatively) and parenting coordination (an informal mediation-arbitration procedure). We must make these our primary methods, not alternatives.”
The most important point Emery’s making in the article is one we stress in the collaborative process. Divorce doesn’t make parents stop caring about their children, and it doesn’t keep them from loving and caring for their children. It changes the amount of time each parent will spend with their children, but it doesn’t in any way diminish their hopes and concerns for their children. Both divorced parents and married parents are concerned with the well-being of their children, and as collaborative law has shown us over the years, divorced parents have the capacity to work together in raising children.