A judge sits at the bench as a Mother and Father going through a painful divorce argue through their lawyers about the latest crisis. Mother claims Father has refused to pay for the children’s extracurricular activities; Father claims that he does not have the money. The judge is about ready to rule in Mother’s favor when the Mother says that “I told my son that if his Father just paid for the class everything would be fine.”

And everything stops cold because Mother did something judges hate: she spoke about her divorce with the children.

Natural

This post will discuss the real practical ways parents should communicate with their children about divorce with the focus on how these communications could be seen by the courts and family law litigators.

When parents fight, children sometimes get caught in the middle. And sometimes they are caught even when the parents do not realize they are doing the catching. Its natural for any child to want information from mom and dad about the divorce.  Talking to children about divorce is a difficult subject. However, its made much worse by parents who do not realize the pitfalls of communicating with the children about the divorce in any way. Every child is different and even as children get older and may appear more able to handle these intrusions, but to the courts any discussion about the adult-world of divorce should be avoided.

Courts greatly discourage communication about the divorce between parents and their children, and its easy to see why.  Children should be children and not witnesses to the final days of their parents’ marriage. Parents who are getting divorced have biases and by discussing the events of the divorce with their children, usually in real-time, they are impressing on these children those biases. Courts do not want the emotional trauma of a divorce transferred to the children; children who are going through a divorce have it bad enough and is only worsened when they have to view the emotional, financial and social consequences as they unfold. And usually, one parent is explaining these things to the child at the expense of the other parent. And sometimes both do it. This leaves the child feeling that he or she has to take a side, and no child should be forced to chose sides in a divorce.

As most parents know by now, you should never, under any circumstances, speak ill of your spouse around your child. The child loves both parents and saying disparaging remarks about their other parent only serves to 1) make you look mean and vindictive and 2) make the child believe something negative about their other parent. And as with anything else, if you say bad things to your child about your spouse, there is a very good chance it will get back to the other parent and then to the judge.  Judges are notorious for coming down extremely hard on parents who speak negatively or disparage the other parent with the children present.  In fact,. judges can even bring sanctions against parents who allow others to speak disparagingly about the other parent while the child is merely present.

Sometimes parents will use the children to pass messages to the other parent. This sometimes seems not just easy but a preferable way to communicate when communication is so difficult. A simple message from a mother who is trying to avoid confrontation to a father who is angry through a child who is confused is a recipe for disaster, though, and this should always be avoided. Children should not be stand-ins for communication, and children, routinely, misunderstand or fail to convey the correct message. This leads to needless miscommunication and arguments that now must include the child. Further, even innocuous messages can lead to a blow up. If a mother says to a child “Tell dad that I will be late next week because of a doctor’s appointment,” it could snowball if father responds “Well, then tell mom that if she’s going to be late on my parenting time then I may be late with my child support payment.” Nothing is worse than having a child be the “bearer of bad news.” I have even had parents tell me that they have made settlement offer through their child to the other spouse, something that is not only toxic to the process but rife for miscommunication and emotional damage to the child.

Courts hate all of this. Judge’s take a dim view of parents who put the child directly into the process. Judge’s have a wide variety of tools at their discretion to come down hard on parents who detail issues to their children about their divorce. These include reductions in parenting time, limits on parental communication with the children, and even being found in contempt of court which could even include having to pay for the other spouse’s attorney’s fees.

The First Talk

A natural place to begin is what to tell the children once its clear that Mother and Father will be getting a divorce and will no longer be living together. If at all possible, try to have this conversation with both parents, but you, as the parent, should know if its better to have it once with all the children or break it down as to each child individually. Divorce is a really hard topic, but chances are your children have already picked up hints on the difficulty between his or her parents. Both of you should stress the high points- that you both still love your child and that you and your spouse will be his or her parents forever; nothing changes that. Explain that while the parents no longer live together, they are both going to still be there. Explain the parenting schedule – when the children will be with one parent or the other; explain where the children will go to school and how they will still have a routine. Children do better with clear boundaries and the mere idea that they will not know where to sleep or where to go to school can be frightening; assure them that you and your spouse have already thought of all this.

One thing parents may want to say but should not is that “everything will be okay.” While this seems reassuring, it has the effect of minimizing the concerns the child has and trivializes the pain, confusion and anguish they may be experiencing. Instead, encourage your child to express their hurt or fear; tell them that you and your spouse will still be there for the child and answer their questions whenever possible. Also, tell them that while things will change, everyone is working very hard to do what’s best.

Under no circumstances should you describe for your child who is at fault. I have had clients tell me that “Well, my nine-year-old asked me why I had to move out and I have a very honest and open relationship with my daughter so I told her ‘Because mommy wants me to leave’.” Do not do this. Ever. Honesty is not an excuse to mentally sabotage a future relationship between a child and his or her parent and its no time to set the tone in such a hostile and passive-aggressive manner. Also, the “mommy” in that story will absolutely be telling the judge how their daughter’s father blamed her for the divorce.  And that judge will have good reason to sanction or fine that father.

And while this has little legal impact, avoid any pretenses that the parents may get back together, even if there is truth to this. Children are extremely impressionable and love both of their parents; do not leave any false-hope that a reconciliation is possible because that will be the only thing the child remembers. Children are hopeful and may try to get the parents reconciled, something well-beyond their abilities. And once they learn that the divorce is unavoidable they may blame themselves for failing to keep their parents together.

Do Not Say ‘You Have a Say’

A major issue in any divorce is the primary physical custody of the child; where the child will live and which parent they will mostly live with. This issue, more than any other, makes up a huge portion of family-law litigation. In extreme cases, litigation involving the children can go on for years as parents bring action after action in the hopes of wresting custody from one another. These have devastating effects on children. Sometimes, a court will appoint somebody to, in effect, investigate both parents are write a report to figure out who would be best to have custody. This person is called a “Guardian ad Litem” or “GAL” and their statements to the court can sometimes be the deciding factor on which parent is awarded physical custody. And GALs often interview the children.

I oftentimes find parents who believe their child should have a say in where they live; parents have told me “My son cannot stand their father/mother and they want to live with me; the judge should hear this.” And while that may sound nice, parents are routinely dubious of similar statements coming from the other side; when the same child tells the other parent the exact opposite things. And while parents may invent reasons as to why this may be (“That’s because my Husband scares our son” or “Her Mother offered to take her to Disney Land to say that”) the reality is far more obvious: children want to say things to their parents that they know their parents want to hear. If Mommy and Daddy are fighting over where the child lives, children will tell that parent what they want to hear, namely, that they would rather live with them. Courts are inundated with cases where a son or daughter will tell their Mother “I want to live with you” and then say to the Father, “I want to live with you.” And the child is usually telling the truth in both cases.

And this leads to a critical problem: parents who tell their children “You have a say” in where the child lives. Most parents I speak to become indignant when I tell them that they should avoid telling children these things; after all, they think, shouldn’t a child have some say in where he or she lives?

And overall, the answer is uniformly “No.” People sometimes believe that this is because children could manipulate adults into giving the child what he or she wants, but the vast majority of children are no where near sophisticated enough to do something like this. The major reason is that all children, but especially young children, can becomes immediately overwhelmed with the idea that they- and not their parents – have to decide where they live. Children feel pressure from this responsibility and will wonder why they have to make such a decision instead of the parents – the two people the child has relied on all their lives to make such decisions. Children should not have to face or experience such pressure or responsibility. And often, I read GAL reports where a parent will have, foolishly, told their child “You have a say” and that the child should tell the GAL – a person the child has never met before – where he or she wants to live. This is disastrous and most GALs will notice the stress and fatigue the child feels having been told this by a parent.

While children should be encouraged to tell their parents how they are feeling, children should also be reassured that their parents are still in control and they will do what’s best for the child, regardless of the involvement of others.

They May Want to ‘Tell It to the Judge’

Oftentimes, a court will have to make a ruling on where the child will live, where the child will go to school or even on if the child will go to therapy. This is usually when the parties cannot reach an agreement themselves. And invariably one of the parents – usually the one who did not get their way – will bitterly complain that if the judge made the decision than they will tell the child that this was not the parent’s choice but the judge’s. In fact, some parents will complain that the child should be empowered to speak directly to the judge.

Parents need to be dissuaded of the idea of a child testifying in court at their divorce trial. In my now seventeen-years of practice I have never had a child testify in a divorce and no judge I have ever been before has allowed it. I have had numerous conversations with parents who are angry and at times outraged that their six, seven or eight-year-old child will not be able to testify in court. This is outrageous. Children should not be put on the stand and made to testify over who they want to live with or which parent is better or worse to them. This leaves children in an absolutely impossible situation- having to watch, first hand, their parents arguing and then having to chose which side they are on.

However, even outside of a child testifying in court, its always a mistake to make a child believe that a judge is making family decisions. First, the child gets the impression that the parents have lost their authority and now that authority rests with the judge. When a child hears that the judge- as opposed to their parents – have made a decision, the child may interpret that as the parents losing control of the family. Children may feel helpless, but will oftentimes begin to rebel against parents they now see as weak or not in control.

Second, however, children will also be spurred to want to speak to the judge directly, something that will almost certainly never happen. Children believing that their parents are not in charge will, instead, wish to speak with the authority they perceive as pulling the strings, the judge. This leads children to stop paying attention to their parents and become hopeless as they languish in a family where they see their parents as powerless and themselves as helpless. This boils over into resentment and anger.

Instead, parents should, whenever possible, present a unified front and tell the child that the decisions made were the parents. The judge – and his or her decisions – should never be discussed with the child, just as the divorce should not be. Sometimes duplicitous parents will tell the child that they fought hard for the child in court but that the other parent and judge were against him or her. This is toxic and if this sort of discussions are discovered, then the other parent will almost assuredly return to court. When the judge is informed, he or she will take appropriate action against the offending parent.

This leads to what final ruling after a trial where the final decision has been made. Here it is going to be extremely difficult to get both parents to agree on a unified message. Trials are expensive and long processes that are the culmination of months and sometimes years of emotional and financial toil; trying to put all that aside when it finally ends is probably too much to ask. In this case, both parents should tell the child the new arrangement and that this is the end of the discussion; that everyone should learn to live under the new rules at least “for now.” Again, children like routines and can likely live with the new ones once they stop being so new.

Say What You Mean and Mean What You Say

Divorces are hard, and at times feel impossible to navigate. And children can take it the hardest. Children need to be told what is most important to them and parents need to keep those lines of communication open. Constantly tell the children the schedule so that they are reassured of its normalcy and predictability. Always make time to talk to your child if they come to you with a problem regarding the divorce. If a child is telling you something the other spouse said, make note of it and decide later on whether or not to bring it to your lawyer and then the court, but with your child, assure them that you will handle it. If one spouse makes a mistake and does discuss the case with the child, immediately bring this to their attention and say in a cool but deliberate tone that both of you should avoid this. If you are the one who did it, listen to the specifics and then, if true, admit your mistake and move on.

Whenever possible, speak directly to your spouse and, if not, speak through your lawyers.  This is especially true if there is any restraining orders in place.  Your lawyer is there to do the communicating that may be too difficult for you.

Share with your children good news, even if its about their other parents and encourage your child to share with you good news about their other parent.  If you child speaks ill of their other parent, tell them to stop and say that you would expect the same if it was the other way around.  Allow your child to express their concerns with you and make sure they know when concerns are  justified or not.  Insist on regular rules with your children and that your child has to still follow them even if “Mom/Dad lets me ….”  Be sure to continue to do the normal, boring things of parenting – homework still needs to be done, chores completed, and teeth brushed.  They do not get a pass merely because things are changing.

And as cliche as this may seem, remember to say to your kids “I love you.”  They know it, but it never hurts to say it.

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