Child Custody Myths that Put Children of Divorce at Risk

A number of popular myths about child-related court proceedings lure separating parents into poor, and sometimes disastrous decisions regarding their children. At the beginning of the short film Talk to Strangers, David and Laura Sherwood, a pair of well-meaning but misguided parents articulate a number of these myths. Two of them are discussed in this article. Separating parents need to understand how these myths underestimate the impact on children of child-related court battles.

Myth #1: “Judges Protect Children During Divorce.”

The Truth: As with all the myths about children and the courts, this one sounds reasonable enough. But as a rule, judges don’t monitor how the kids are doing as their parents’ case works its way through the system. Even in custody, parentage, or child-access cases in which judges eventually do become directly involved with children’s issues, that involvement usually doesn’t begin until trial is imminent. And that’s too late to protect children from the kind of emotional harm that high-conflict divorce can cause.

We know that custody battles are bad for kids. The reason seems obvious enough: Prolonged high levels of parental conflict are toxic to children. But there’s more to it than that. Battles over children (“fully contested divorces”) deprive those children of the very things they need most.

What are those needs?

A “Top 4 List” of children’s needs during divorce would read something like this:

  • • An end to their parents’ fighting
  • • An end to uncertainty about where and with whom they will be living
  • • A return to some degree of normalcy in their lives
  • • Security in knowing that their parents will continue to love and care for them

And here’s the thing: Custody/access battles deprive children of all of the above. In fully contested cases, children experience prolonged conflict, uncertainty and highly dysfunctional parenting. Slowly but surely, normalcy and security become distant memories for those children. It’s true that at trial, family judges try to act in the children’s best interests. But that doesn’t erase the impact of months of anxiety and stress for children whose parents are often too embroiled in their own conflict to attend to them.

Nor can judges spare children the rigors of the custody evaluation process. Judges don’t supervise that process; by the time a case comes to trial, it’s been completed. Interviews by court services counselors, attorneys or mental health professionals—no matter how well intentioned or how adeptly performed—can be terribly intrusive and intensely embarrassing to children.

In many other ways, large and small, children’s lives are disrupted by the prolongation of their parents’ divorce that occurs in fully contested cases. No one can protect children from that except parents dedicated to working out their differences for their children’s benefit.

Myth #2: “The custody evaluation process is designed to protect children.”

The Truth: The custody evaluation process is not designed to protect children. It is designed to gather information for the court. And that process intrudes mightily into children’s lives.

Many of such intrusions go unnoticed. An extracurricular activity missed while a child meets with an attorney or custody evaluator, or a play-date prevented by an inflexible visitation schedule, might not seem like a big deal. But for children already reeling from the break-up of their family, the cumulative effect of such disruptions can be profound.

Dedicated professionals in high-conflict cases try to spare children unnecessary hardship. But of those professionals, only the children’s counsel, guardians ad litem, or in some jurisdictions parenting coordinators act solely on behalf of children. Court services counselors and mental health evaluators are undoubtedly concerned with what is best for the children. But again, their role is to provide information and assessments for judges to use in deciding child-related issues. Their role is not to protect children from the stress and anxiety they experience while awaiting those decisions, and often for many years afterward.

The truth is that no one can fully protect children from the risk of emotional harm in fully contested cases. Where children are at risk due to factors such as a parent’s mental illness or untreated substance abuse, court intervention is often necessary. Absent that, parents and their counsel have an obligation to children to try to resolve child-related issues as quickly as possible.

Learn more about how to maximize results and minimize costs
in Larry Sarezky’s new book Divorce, Simply Stated.


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