Divorce: A Survival Guide by Dianne R. Ophelia
I. The Children
- How do I tell the children?
- Whom will the children live with before we go to court?
- Who decides custody if my spouse and I do not agree?
- Should children know about the divorce action?
- Will I have a 50/50 custody arrangement?
- When can my child decide where he or she wants to live?
- Can I move away with the children?
- The Do's and Don'ts with Children and Divorce
1. How Do I Tell The Children?
The most important decisions that you will make in your divorce relate to those involving the
children. If you fight with your spouse about every other issue in your case, at least try to
make peace long enough to break the news to the children in a healthy and peaceful manner. It
will be one of the best decisions you make.
I suggest the two of you sit down with your children together at a designated time. Discuss
your agenda ahead of time. Agree upon how and what you will say.
You may want to approach the conversation like this:
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Your Mom (Dad) and I are going to separate. We still love each other but cannot continue to
live together. No one is to blame. This is just a decision we have made. We know this will
be hard at first but we believe that it will be better for everyone.
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We will both always be here for you. You will never lose contact with or be without either
of us. We will make a plan so that you can spend plenty of time with each of us.
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You will have a bedroom at both of our homes and plenty of your things at each place. We
will make sure you still can be with your friends and you may make some new ones as well.
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The fact that we have decided to live apart is not your fault. Each of us will be fine and
so will you.
If one parent is moving out of the family home right away, I suggest that the other parent take
the children somewhere else on the day of the move, or better yet, out of town for the weekend.
Moving is a traumatic event for adults and children. It is even worse when it is a parent moving
out of the house.
You should explain to your children that Mom or Dad is moving out and tell them that they will be
a part of helping that parent settle into their new place. Although it may be difficult, try to
make it exciting for the children, an adventure, if you will. Let them pick out some items for
their new room, or rearrange it the way they want. If they are a part of the new place from the
beginning, they will identify with it as their home and a place of security.
Remember that the children love both of you and want to be a part of both of your lives. No matter
how much you dislike the other parent at this point, your children still love and need both of you,
especially when they are feeling insecure about the situa¬tion. Security is a major factor for
children during the divorce process.
2. Whom Will The Children Live With Before We Go To Court?
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Both parents have the right to custody of their children before a court order is entered. This
can create a major conflict for the parents, and even worse, the children. Because of the
crowded court calendars, it may take several months or longer to obtain a court order regarding
custody.
The best choice is for both of you to sit down and work out a temporary arrangement together,
or with your attorneys. It may not be exactly what either of you wants, but is still far better
than fighting over the children and creating a situation which may cause long term emotional
damage to them.
If the two of you cannot work out an arrangement, another option is to seek the help of a
professional counselor or child psychologist who specializes in this area. They have studied the
short and long term impact of divorce upon children and can educate you about how best to handle
the situation. They will often meet with both parents and the children, separately and together,
to understand the dynamics of the family. They will then propose a schedule which works best for
the children. Remember, the children’s best interests are the issue here, not what you would like
to have happen. People often lose this perspective when faced with custody decisions.
If neither of these options work, then basically the decision is left to the spouse who is willing
to give in to keep the peace for the children’s sake (sad, but true). If you are unhappy with the
temporary arrangements regarding custody, it is essential that you contact an attorney and file
the necessary papers to obtain a hearing date as soon as possible to resolve the situation. To
delay will only make matters worse.
One of the factors the court generally considers when making a custody decision is who has had the
children since your separation. Occasionally, a parent who wishes to reconcile, is suffering from
depression or guilt, or is just not coping well, will voluntarily back off from seeing the children.
This is a mistake. First, it hurts your children, who really need to spend time with both parents
at this critical time in their lives. Second, the court will look upon the non-action as an
indication that the parent really doesn’t want the children, and that parent may receive adverse
orders regarding custody and visitation as a result. Make every peaceful attempt to be with the
children that you can prior to receiving a court order.
If you honestly believe the children will be in danger if left alone with the other parent because
of the abuse of alcohol, use of illegal drugs, violence or other serious concerns, you may seek
emergency court orders. If appropriate, the court will issue immediate temporary orders for custody
and supervised visitation, pending a complete evaluation of the situation.
3. Who Decides Custody If My Spouse And I Do Not Agree?
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Parents, acting in a rational manner, arc the best people to decide what is in their children's best
interests. The problem is, at divorce time, numerous factors stand in the way of rational thinking.
Child support is a big issue. Fault and guilt are others. Add selfishness, hurt, anger, revenge and
a whole host of emotions and watch a child's best interests fly out the window.
As a result, the decision is left up to the court in many cases. The problem is that the Judge does not
know you, your spouse or your children. Although he or she cares about your case at the moment, they
will most likely not give it another thought after it is over because they will have twenty more cases
to deal with.
To assist the Judge in making a decision, a court mediator or a private mediator may be appointed to
evaluate the family. One of the best options, if the two of you cannot agree upon a custodial plan, is to
have a private child psychologist or counselor interview the parents, children and other relevant people
to determine what type of custodial arrangement would best meet your children's particular needs. The expert
will attempt to obtain an agreement for a custodial arrangement. If an agreement is impossible, the expert
can prepare a report of his/her findings and recommendations regarding custody and submit it to the court
or to the Family Court Services division of the court.
The advantage of private mediation/evaluation is that you have a qualified person take whatever time is
required to really understand your family and its dynamics and make an informed, educated decision about
your children's lives. The disadvantage is that generally health insurance does not cover this service and
it can be expensive. Spouses usually share the cost. Since the children and their well-being are the most
important part of a divorce, you may want to think about spending more money on the evaluator and less
money on attorney fees litigating money matters.
If you do not agree to private mediation/evaluation, the alternative is the court system. Most counties
provide mediation services through an Agency. The service is usually free. A counselor will meet with you
and your children and attempt to have you reach an agreement. If you do not agree, some counties have the
counselor send a report to court with their recommendation, others do not. The time the counselor has
allotted to each family is generally very inadequate, because of the sheer volume of their cases. Imagine
having your children's future decided by a stranger who meets with you and your family for about an hour.
It happens every day. This is the price people pay when they allow their emotions and their pocket books
to overrule their common sense.
Ultimately, if either of you do not like the recommendation of the private or court mediator or evaluator,
and you and your spouse cannot reach an agreement, a trial is held. At trial, a Judge, who may have little
background in these matters and who doesn't know anything about your family, will hear testimony from you,
other witnesses and the evaluators, and then decide the fate of your children. The Judge may have an hour,
a day or a few days to handle your case. You and your children have to live with the re¬sult instead of
deciding your own destiny by working together and/or with a professional. The choice is up to you.
4. Should Children Know About The Divorce Action?
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Divorce is an adult person's decision and responsibility. Children don’t cause divorces and should not be a
part of the divorce process. Leave them out of the drama, turmoil and ugly side of this most difficult time
in your life. Their emotional health now and for years to come will be impacted by how you handle yourself.
Children deserve to be children. They should be thinking about school, play, and friends. They should not
have to worry about whether Mom or Dad will be lonely, safe or absent from their lives. They should not
worry about whether a parent is broke because he or she is paying too much support or the other parent
cannot pay the bills because support is too low.
This sounds pretty basic; however, I see it in my practice all of the time. Parents bring their children
into the financial part of the divorce or use them as a crutch to get through the divorce process.
Even though you may not like the other parent at this particular moment, remember that your children still
adore and look up to that person. It is not your place to knock the other parent off the pedestal in your
children's eyes. Children need to develop their own understanding of each parent in their own time and in
their own way. If you try to influence their opinion of the other parent, most often they will turn on you
because they feel you arc trying to alienate them from the other parent.
Never tell children about what is going on in the divorce proceeding. They do not need to meet your lawyer,
the other parent's lawyer, know court dates or proceedings, etc. These are adult issues. Children should not
know when you have an appointment with your lawyer or when you going to court if you can help it.
The only time children should know anything is when it directly impacts them. For example, if the children
will be talking to a mediator or custody evaluator, you should inform them a day or two before the appointment
so they don’t dwell on it. Tell them they are going to talk to this person and all they have to do is tell
the truth. Do not tell them what to say or try to influence their opinion. One of the most harmful impacts
of divorce upon children is when one or both parents try to manipulate them to "win" their case. Be
sure to tell the children that they should feel free to say anything they want to say. They don't have to
worry about hurting your feelings or the other parent's.
The only other time to involve your children at all with the process is after the court or parents make a
decision which impacts them, i.e., a change in the custodial schedule, where they live, where they go to
school, etc. Remember that only decisions directly impacting the children should be discussed with them and
only after adults have already made those decisions.
5. Will I Have 50/50 Custody Arrangement?
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No lawyer can tell you if you will have your children fifty percent (50%) of the time once you separate.
One major question is whether both parents were equally involved in the children's lives during the marriage
or was one parent the "primary parent"? The evaluator will look at every aspect of your children's
lives to make this determination. For example:
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Who wakes the children up in the morning and is in charge of their getting dressed?
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Who cooks breakfast, lunch and dinner?
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Who takes the children to school and picks them up?
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Who meets with the teachers, attends parent-teacher conferences, and goes to other school functions?
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Who takes the children to their activities and sports?
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Who assists the children with their homework?
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Who takes the children to medical appointments, and takes care of medical emergencies at home or at school?
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Who takes the children clothes shopping, for haircuts, on errands, and other routine activities?
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Who takes the children to religious activities?
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Who gives the children their baths and puts them to bed?
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Whom do the children go to when they have a problem or concern?
The next area of investigation is the relationship between the parents. Joint custody works best if both
parents keep the children's schedules consistent and work together. This includes having the same child
care providers, same activities for the children, same sleeping hours, and if possible, same meal times,
homework times, etc. Not everything can be consistent; however, the more consistent the children's
activities are, the more positive the outcome for joint custody.
The investigator will look at whether the parents are able to effectively communicate. Joint custody
requires much more contact and coordination between the parents. Those parents that are "at war"
generally are not candidates for joint custody.
Finally, the investigator will focus on the children themselves. Are they the type of children who can
handle the changes in households well or do they really need one consistent place? Do these children
thrive on constant and regular contact with both parents?
One common area of investigation is whether the children need balance, i.e., will they feel uncomfortable
being with one parent more than the other? Many children feel the need to be absolutely fair and equal
with their parents, including how much time they spend with each parent, in order to feel good about the
divorce situation.
These are but a few of the very complicated factors an expert must consider when determining the best
interests of the children. Every family and every child are different, which is why I advocate having a
private Child Psychologist determine the best plan for your family.
6. When Can My Child Decide Where He Or She Wants To Live?
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There is no hard and fast rule. It depends upon the maturity of the child, the reasons behind that child's
desires, how much pressure the child is under by cither or both parents and similar factors.
The correct answer should be "never." Parents/adults should decide where children live, not
children. This is an adult decision and should be based upon adult, rational thinking.
Too often, parents try to "buy" their children in various ways to convince the children to live
with them. I have seen parents promise material incentives such as go-carts, motorcycles, cars, trips,
etc. They have tried to use freedom as an incentive, i.e., late night curfews, freedom to watch any movie
they desire, as many friends as they want over and so on. They have tried the sympathy route: "Poor me,
I am all alone. Your Dad (Mom) has remarried and has someone to take care of him/her." Sometimes the
new family is used as a weapon: "Don't you want to spend time with your new baby sister?" The
list goes on and on. The children become more and more confused and ultimately suffer long term emotional
trauma.
Let your children live a normal life. Don't use them as pawns in your war. Make adult decisions with the
input of experts to determine what is best for your children. Your children should never have to choose
between you, at any age.
If you still want an answer to the question, most courts will look at age 13 and older. The older the child,
the more weight will be given to the child's input.
The ultimate decision, however, is always that of the Judge, if the parents cannot work out a satisfactory
arrangement by themselves.
7. Can I Move Away With The Children?
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Once again, there is no clear-cut answer. Before you consider moving, however, you should investigate the
impact that the move will have upon your children. A recent study, which involved interviewing adult children
of divorce whose parents lived more than an hour away from each other, showed consistently that distance had
an adverse impact upon them, both as children and as adults. When parents live great distances apart, children
will never have the same relationship with each parent as they would, had the parents chosen to remain close.
Is it fair to deprive your children of a normal relationship with both parents to satisfy your own needs or
desires as an adult? You have a choice, they do not.
Currently, the law in the state of California is that as long as a person is moving in good faith (not for the
purpose of distancing the children from the other parent), then the fact that they are moving will not be held
against them. The court must look at the situation as if the parent had already moved, and assuming this fact,
decide where the children should live. The higher your custodial percentage of time with the children, the more
likely you will be able to move with them. The law and guidelines in this area are complex and always changing.
If you wish to move with your children, you should consult with an attorney to apply the current law to the
particular facts of your case.
Be aware, however, that the court process takes time. Generally the court will order a child psychologist to
investigate the case and make a determination of what would be in the children’s best interests.
This evaluation and court process can take months, if not a year, to conclude. Start the process as soon as you
know the move is imminent.
Also, understand that the farther away you move, the more likely it is that your spouse will be granted large
blocks of time when school is not in session to be with your children, assuming they are of appropriate age.
Many courts give the non-custodial spouse custody of the children most of the summer, three-day weekends and
holidays in order to assure that parent as much quality time with the children as possible.
Finally, remember your children. I find it fascinating that a parent and/or court will require children to travel
for hours on Friday and Sunday of every other weekend. Sometimes divorcing parents forget what is reality for
their children. Always put yourself in their position when making decisions impacting their lives.
8. The Do's and Donts With Children And Divorce
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NEVER ARGUE IN FRONT OF THE CHILDREN. The children are frightened enough about the fact that their world is being
turned upside down. Do not add to it by raising your voices in their presence (anywhere within earshot).
DONT DISPARAGE THE OTHER PARENT. Remember, your children still love and need both of you, particularly now. They
are losing their world with their parents together. If you try to alienate them from the other parent by saying
bad things about that parent, then they will feel as if they are losing one or both of their parents as well.
They will lose you because they will be mad at you for hurting their image of the other parent and will lose the
other parent because they will believe at least some of what you are saying about that person.
DONT DISCUSS MONEY WITH THE CHILDREN. The most important part of a child’s life is having their parents there for
them. Money and material diings are secondary. Don't burden your children with financial matters. They should be
thinking about their last ball game, not whether there will be food on the table or a parent cannot take them out
for pizza because all their money went to pay support.
DONT DISCUSS THE DIVORCE PROCESS WITH THE CHILDREN. As I stated earlier, divorce is an adult arena and no place for
children. They should know nothing about the divorce, court, lawyers, or anything happening in your case. They only
need to know that which directly impacts them, i.e., when they will see each of you, where they will live, where
they will go to school, etc.
DO MAKE THE CHILDREN FEEL SECURE. They are scared right now. Make sure they know one of you will always be there,
whether it is at an activ¬ity, picking them up from school, being at home with them and so on. Abandonment is one
of the foremost issues in their minds. Do what you can to make them feel secure in the fact that they will be okay.
DO KEEP CHANGES IN THE CHILDREN'S LIVES TO A MINIMUM. Divorce always means changes, so work to make those changes
as few as possible. Keep the children in the same activities as during the marriage. Try to keep them in the same
school with the same friends. Try to keep their routines the same whether they are with Mom or Dad.
Buds can only handle so much change in their lives, so be aware of that when making adult decisions.