Divorce is a difficult time for all family members, but especially for the children. A child that has a serious illness or difficulty prior to the initiation of a divorce may have such problem accelerate during the divorce process. We call such child the “Special Needs Child”. This child has apparent or diagnosed emotional/medical problems.
Special Needs children are seriously impacted by the decisions made during a divorce. It is important for parties to determine how meaningful, regular visitation will be accomplished and which parent will have the right to make major decisions on how to address the child’s emotional and medical needs. During a divorce, most parents have difficulty agreeing on issues, especially issues related to the problems associated with a special needs child.
1. Child with Emotional Issues:
Children will always experience some level of negative emotions during the divorce process, even in the best circumstances. When a child has a mental illness or emotional problem, how visitation periods are managed, who has the authority to make a decision on medical treatment and therapy and how such decisions will be followed and enforced in each parent’s household will greatly affect the success or failure of the final decree as it pertains to the child. It is very important to have an order that is flexible and meets the child’s changing needs, yet remains enforceable should action need to be taken due to a parent’s failure to meet the needs of the child.
Three of the most reported emotional and behavioral issues involving children are Attention Deficit Hyperactivity Disorder (ADHD) Behavioral or Conduct Disorders, Oppositional Defiant Disorder (ODD), and chemical addictions.
2. Special Medical Needs
When a child has significant medical health problems or disabilities, parents may have very different opinions on who should be the decision maker regarding doctors, medications and regimens for a particular situation. This may be compounded by the emotions and breakdown in the marital relationship. The court must help to balance the needs and rights of the parents so that each has a voice in their child’s treatment decisions. It is also important that the parties, along with the Court, work for a consistent treatment protocol for the best interest of meeting the child’s medical needs.
The real battleground in custody cases becomes the allocation of rights and duties between the parties. This is exacerbated when the child involved has emotional or medical needs. Other factors that may compound issues are 1) other children involved and 2) whether they also have special needs. Major problems occur when there are differing views between the parents on how to best treat the problem, lack of consensus among medical and mental health professionals as to the appropriate protocol for treatment and uncertainty among family courts as to which protocol to “impose” upon the family.
Courts vary greatly on how each allocates rights and duties, even in joint managing conservatorship situations. In the event the parties cannot agree on the allocation of rights pertaining to educational and medical decisions, then the focus of a custody case becomes one of which parent can best make decisions that are in the best interest of the child.
To make a meaningful decision on the care of the child, the court will need evidence of the following:
· Which parent is the most involved in the decision marking as pertains to the relevant issue?
· What are the competing theories of how to best treat the child?
· Current opinions from the child’s physician and /or therapist.
· What is the generally accepted treatment for the specific condition?
· What is the likelihood of each parent following the protocol selected by the court?
· How successful has the treatment been in the past?
· What are the attitudes of the parents in relation to considering alternative methods if the current situation doesn’t work?
· Which parent has shown a proven effort at recognizing the child’s needs and working to address them?
The selection of a reputable expert in the particular field in which the child is affected is paramount to a true evaluation of the situation. Not all doctors and therapists are created equal, and the expert must be a specialist in working with the child’s specific problem.
The Nacol Law Firm P.C.
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972- 690-3333
Monday, May 18, 2009
Divorce really sucks (a view from the trenches) Part 5
Trial Strategy – Constructive or Nonproductive
Throughout the tenure of a divorce or custody suit, strategies are employed to improve the strategic position of a spouse before the court or a civil jury.
A non-all-inclusive list of such pursuits of a spouse and his or her attorney may include the following non-productive trial strategies:
1. False claim of child abuse – frequently attorneys and/or their clients will make artificial or transparent claims of child abuse either directly to a jury in a trial or through the filing of a frivolous Child Protective Services complaint. Such ineffective claims may include claims of physical abuse (when in truth is a properly administered and appropriate corporal punishment for grievous conduct dangerous to the child), false claims of injury (whether it be normal scrapes and bruises occurring from play, garden variety accidents all children have, or fractures to the arm or leg occurring through no real fault of either spouse). Frequently, the claims are exaggerated with photographs and close up shots and, on occasion, artificial support from the minor child through the coercion of a spouse. Jury’s are very resentful of this approach and will hold the party asserting such frivolous claims accountable at the end of the day.
2. False claims of alcoholism, substance abuse and/or prescription drug excess – painting a picture of a spouse as an alcoholic or a danger to his or her child based on a glass of wine at an Italian restaurant is frequently a ploy attorneys will use given great social resentment to alcoholism, DWIs and general drug abuse. Certainly, if the abuse is real the claim is valid and is constructive. However, frequently clients will exaggerate social alcohol consumption that is reasonable and is looked upon by the jury as a waste of their time and they will frequently hold the party falsely alleging such abuse accountable.
3. WAR by financial attrition - if there is insufficient community property to adequately fund both sides of a divorce, one spouse may use outside sources of income in the form of family loans, gifts, spend thrift trust disbursements or other disbursements from relatives to financially bring the opposing spouse to his or her knees and demand agreement to terms that are unreasonable and not productive for the underfunded spouse or the children of the marriage. Regrettably, the divorce process is part of the adversary system of justice and leaves this unfair loophole open in such circumstances. Though not outright unethical, such conduct and strategy does not pass the smell test.
4. Cookie cutter witnesses – preachers, rabbis, soccer coaches, parents, grandmothers, grandfathers, brothers and sisters generally bring a yawn from the jury or the court. If their testimony is direct, short and fact driven on an important core issue in a divorce or custody suit, they are necessary. In general, the jury’s perspective is, “what do you think a preacher, grandparent or soccer coach is going to say about the child in their care...that the mother or father they support are bad?”
5. Use of the children as spies – attorneys or clients that use the children to spy and give testimony before a court or jury almost always fail in their goal. Most judges and a majority of juries are highly resentful for bringing minor children into the fray and such a strategy is doomed to backfire before the judge or jury. Clearly, if a relatively mature child is the ONLY source of information that is core to the case and IF there is no other third party professional or other source to support the issue, sometimes the testimony is necessary. This is especially true in cases of real abuse, parental alienation and other destructive conduct that is fundamental to the issues of the case.
Productive strategies:
1. Here is a novel idea. How about truth and sincerity. It has been this writer’s experience that a jury will give some ear to experts, social workers, teachers, coaches, doctors, preachers and other witness with personal knowledge. Inevitably, the final result is driven by the truth and sincerity of the spouse testifying. With predictable regularity a jury will make their decision based squarely on the shoulders of the spouse testifying and the honesty and forthrightness of their testimony.
2. Experts – psychologists, psychiatrists, social workers, doctors and other professionals will be given credibility to some degree by a jury IF their opinions are based on acceptable, acknowledged predictable science and IF they have spent sufficient time with the minor child and/or both parents to render a believable opinion. Rent-an-expert’s testimony is disdained by most juries and seen for what it is - as an opinion for hire. The longer the relationship between the testifying expert and the minor child, the greater the likelihood will be that the opinion is fairly received and considered by a court or jury.
3. Election by a minor over 12 years of age- any child over the age of 12 may sign an election (affidavit) of their preference of primary caregiver. The courts will strongly consider these elections and in the large number of the cases make a decision based on the child’s wishes. Juries will favorably consider such elections so long as they are based on believable facts and parental propriety. However, the securing of such an affidavit when in conjunction with a new car, a new wardrobe, or a loose, undisciplined parental attitude towards control of the child will result in the opposite of what the spouse seeks in obtaining such an election. The elections are not binding on the court, but if they are legitimate and based on fact, they are highly cogent evidence which the court and the jury will strongly consider.
4. Depositions of paramours, IRS agents, psychologists, doctors, ex-wives, employers, secretaries, etc. – well thought out, terse, and to the point testimony on facts that support a claim revealed in depositions is far more effective than hearsay or other testimony that is not likely to be received well by the jury. It is important that such deposition testimony be short, to the point and dispositive of a real issue in the case.
The above is not an inclusive list of strategies employed during the divorce proceeding, however, if properly employed or excluded may be instrumental in a positive result for the client during this very difficult time.
The Nacol Law Firm P.C.
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Monday, May 4, 2009
Bitter Truths are Painful but Help Children Recover
The transition process for a child in a divorce is a difficult one which can result in acceptance, growth and renewal or long term resentments and unrealistic expectations.
It is this writer’s belief that the most heinous, destructive event that can occur in a divorce process is the use of the children by either spouse to support their own emotional needs or to seek advantage in the process through their children.
If the divorce is accepted and inevitable, every child deserves to know bluntly and directly where they stand. The exact approach a parent should take with their children will depend on the particular nuclear family, the life belief systems of the family and the relative maturity of each child. At some point, even with young children, every child has a right to know that mom and dad are getting a divorce, will never live together again, do not want to be married, and, if indicated, do not love each other anymore. This brutal truth inevitably will result in acting out, crying, assessment of blame, and sometimes pleading for a different result. Frequently, there is a temporary drop in grade levels, achievement scores and, in the teenage years, disrespect, substance experimentation and/or abuse and authority issues with teachers, coaches or other mentors which have not occurred prior to the separation. I believe that with honest direct knowledge, regardless of the pain, acting out and emotional injury, the children are at least standing on reality, firmly on the ground, and have a reference with other children, peer groups, and friends who on many occasions have been through the same thing. They can express their feelings directly to their friends and peers. They can converse with authority figures or others directly about the truth of the situation and can commence their new lives based on truths and not fantasy.
Alternatively, the most destructive approach a female or male may take with their children is to offer denial or false explanations such as “my mom and daddy are not going to live together for a while, but they may get back together some day,” or “mom and dad love each other, things are not working out right now and we will just have to see.” In the short term, this approach probably is less emotionally upsetting and easier for the parents and the children. In the long run, it can be catastrophic as the children of the relationship are standing in quicksand and falsehoods which give their children no base of reference among their peers at school, church, clubs, etc. They have nothing they can discuss or share with their peers because their parents are “not married” and are “not divorced.” They may become confounded, and this writer believes the result may be long-term character issues and other disorders which may be avoided if the children are allowed to go through their own grief reaction and start new lives based on truth rather than fanciful false hopes.
It is absolutely critical that each spouse never demean the self-esteem of the other spouse to their children or to other adults in front of their children. If dad is a drunk and a mother tells her eight year old son this is the “reason” for the divorce, then every time that eight year old boy looks in the mirror he sees a drunk. If a father tells a daughter that a divorce had to occur because of the mother’s new relationship with another man, then every time that young girl looks in the mirror she sees a whore. Children will internalize these assertions because regardless of whether the assertions are right or wrong, they are being made by people who are their parents, advisors and whose behavior they model. Rest assured that a frequent dead-beat father or mother is infinitely better than no father or mother at all. Additionally, it has been this attorney’s experience that using the children to forge a position in a divorce inevitably back-fires before the judge and/or jury and, over the long-haul as the children mature into adulthood, they will resent the self-degradation of the other spouse and hold it against the spouse who tried to manipulate the child for the rest of their lives.
Once a direct, unambiguous, concise, and sometimes brutally honest statement is made to the children as to what their future will be, the best emotional results for the children appear to come from parents who thereafter remain silent on the topic. Children frequently are dealing with adolescence, puberty, early religious beliefs, adaptation to sexual urges that are normal and hormonal, and every other issue all children deal with as they mature and grow. The last thing on earth minor children need in this contentious environment is to become a go-between message carrier or spy against a parent who is someone they love and who they follow as a role model, during a terrible period of time in their life when their own grief reaction is just as hard and painful as that of the parents going through the divorce.
The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
It is this writer’s belief that the most heinous, destructive event that can occur in a divorce process is the use of the children by either spouse to support their own emotional needs or to seek advantage in the process through their children.
If the divorce is accepted and inevitable, every child deserves to know bluntly and directly where they stand. The exact approach a parent should take with their children will depend on the particular nuclear family, the life belief systems of the family and the relative maturity of each child. At some point, even with young children, every child has a right to know that mom and dad are getting a divorce, will never live together again, do not want to be married, and, if indicated, do not love each other anymore. This brutal truth inevitably will result in acting out, crying, assessment of blame, and sometimes pleading for a different result. Frequently, there is a temporary drop in grade levels, achievement scores and, in the teenage years, disrespect, substance experimentation and/or abuse and authority issues with teachers, coaches or other mentors which have not occurred prior to the separation. I believe that with honest direct knowledge, regardless of the pain, acting out and emotional injury, the children are at least standing on reality, firmly on the ground, and have a reference with other children, peer groups, and friends who on many occasions have been through the same thing. They can express their feelings directly to their friends and peers. They can converse with authority figures or others directly about the truth of the situation and can commence their new lives based on truths and not fantasy.
Alternatively, the most destructive approach a female or male may take with their children is to offer denial or false explanations such as “my mom and daddy are not going to live together for a while, but they may get back together some day,” or “mom and dad love each other, things are not working out right now and we will just have to see.” In the short term, this approach probably is less emotionally upsetting and easier for the parents and the children. In the long run, it can be catastrophic as the children of the relationship are standing in quicksand and falsehoods which give their children no base of reference among their peers at school, church, clubs, etc. They have nothing they can discuss or share with their peers because their parents are “not married” and are “not divorced.” They may become confounded, and this writer believes the result may be long-term character issues and other disorders which may be avoided if the children are allowed to go through their own grief reaction and start new lives based on truth rather than fanciful false hopes.
It is absolutely critical that each spouse never demean the self-esteem of the other spouse to their children or to other adults in front of their children. If dad is a drunk and a mother tells her eight year old son this is the “reason” for the divorce, then every time that eight year old boy looks in the mirror he sees a drunk. If a father tells a daughter that a divorce had to occur because of the mother’s new relationship with another man, then every time that young girl looks in the mirror she sees a whore. Children will internalize these assertions because regardless of whether the assertions are right or wrong, they are being made by people who are their parents, advisors and whose behavior they model. Rest assured that a frequent dead-beat father or mother is infinitely better than no father or mother at all. Additionally, it has been this attorney’s experience that using the children to forge a position in a divorce inevitably back-fires before the judge and/or jury and, over the long-haul as the children mature into adulthood, they will resent the self-degradation of the other spouse and hold it against the spouse who tried to manipulate the child for the rest of their lives.
Once a direct, unambiguous, concise, and sometimes brutally honest statement is made to the children as to what their future will be, the best emotional results for the children appear to come from parents who thereafter remain silent on the topic. Children frequently are dealing with adolescence, puberty, early religious beliefs, adaptation to sexual urges that are normal and hormonal, and every other issue all children deal with as they mature and grow. The last thing on earth minor children need in this contentious environment is to become a go-between message carrier or spy against a parent who is someone they love and who they follow as a role model, during a terrible period of time in their life when their own grief reaction is just as hard and painful as that of the parents going through the divorce.
The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
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