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What to do when wider family members are drawn into the divorce process
The idea of a ‘good’ divorce might, for many people, look like the conscious uncoupling modelled by Gwyneth Paltrow and Chris Martin. But the idea of a ‘good enough’ divorce seems more helpful for most separating couples and their children.
I discussed with Lia Younes, a Child and Adolescent Psychotherapist, the idea of what a ‘good’ divorce might look like from a child’s perspective. We agreed that the best way to write about this difficult subject was to imagine, based on our legal and therapeutic experience, what children of varying ages might say if we asked them this question. All the examples used below are fictional and draw on our experience but are not based on any specific individual or individuals.
“I wish it had never happened and that Mummy and Daddy were still together. I don’t want us to not be together at weekends. I am sad and I hate this.”
Finn, age 6
One of the hardest parts of being a family lawyer is witnessing the pain that families experience when dealing with separation. Most family lawyers are ‘fixers’: we like to find solutions and, within a legal framework, help families move forward. I am no exception to this but one thing we have been discussing as a team recently is the importance of acknowledging that, particularly at the beginning of a legal process, our role may not be to fix. It might be simply to meet you where you are: to listen and to try to understand all the feelings that you and your child or children are experiencing. That will inform our strategy going forward but the beginning might be more about listening than taking action.
“I just want them to stop arguing. They argue all the time and sometimes it’s like I am not even there. Why can’t they see how upset I am and just stop?”
Chloe, age 12
Most parents will tell you that they care more about their children than anything else in the world. This is something I hear a lot as a family lawyer. But family lawyers and therapists are also helping separating clients at one of the most chaotic, distressing moments of their lives. It is therefore one of the hardest times imaginable to be the “good” parent you really want to be. As a family lawyer, my advice to parents in this scenario is to try and do two things: focus on your child and go easy on yourself.
From a legal perspective, in children proceedings, your child is at the centre of everything. What is in their best interests is not only your priority, it is the priority of the court and should be that of any legal professionals assisting you.
Assessing what is in your child’s best interests will often involve a consideration of how their needs are met by their other parent but these discussions can understandably but unfortunately often lose focus. If you have been talking to your lawyer about issues relating to your child and no-one has said your child’s name for 15 minutes then the discussion may not be focused on your child. This can be a sign that the discussion may be more about a dispute between two parents rather than your child’s future and their relationship with each of you.
If you find yourself being drawn away from your child’s interests, and towards the dispute, try to bring it back on track (your solicitor should help with this) but also – cut yourself some slack. Co-parenting is hard when you are part of a couple: when you are part of a separating couple, although really important, it can feel like a herculean task.
In our discussions, Lia commented on the well-known research that the root of the pain many children experience during a divorce isn’t always the separation itself but rather the consequences of parental conflict: a child’s distress often lies with feeling unseen and stuck in the middle. They can feel powerless which, at any age, can be unsettling and destabilising. You, as a parent, may also be feeling powerless. One thing you can try to do to help you and your children is to look after yourself and check in with them. Lia phrased it perfectly when talking about what ‘checking-in’ with your children is about: it’s about trying to regularly make space for them to share with you any feeling they may be having. You can do this by asking open questions about the changes that are unfolding in the family. Allow them to answer if and when they are ready and try not to force the conversation if you sense some resistance- but do return to it a little later if this is the case. The key then is to simply listen to your child’s feelings and thoughts. Empathise and reflect back to them what you hear and try to resist the temptation to fix anything in that moment or to defend yourself. Remember that you do not need to have all the answers or solutions either - just listen.
“A ‘good’ divorce would be one where I don’t have to go see dad every weekend when I don’t want to.”
Ciaran, age 15
What your child wants is central to the arrangements agreed for them by you, their parents, or decided for them by a court. You will often hear family law practitioners talk about the importance of understanding your child’s ‘wishes and feelings’. Whether it’s about who they live with, when they see their other parent or what school they go to, a court will weigh your child’s wishes and feelings about the issue in the balance when deciding what is best for them. That influences how all family law practitioners deal with issues relating to children, in and out of court.
Most parents aren’t fully aligned on what their child’s wishes and feelings are when they are together let alone when they are separating. Add to this the fact that your child might be coping with some of the conflict arising from your separation by saying different things to each of you to try and reassure you and reduce the conflict. You can see how there may not be one agreed view of what your child’s wishes and feelings are.
For all the reasons set out above, if you are asking a court to make an order about arrangements for your child, they will want a view on your child’s wishes and feelings not just from you but from a third party. That third party will usually be an officer from CAFCASS (the Children and Family Court Advisory and Support Service) or an Independent Social Worker (ISW). If an individual from CAFCASS is appointed their report will be produced without charge but their time may be more limited than that of an ISW. ISW’s are often social workers with a lot of experience in producing these kinds of reports and who charge to provide them. There can be more scope in how much time they are able to invest. In more difficult cases, a court-appointed guardian may produce a report.
In some cases the involvement of an ISW may be limited to just one meeting with the child and each parent. In other scenarios their involvement may be more detailed and longer-lasting. Absent any issues regarding your child’s safety which they have been asked to assess, the aim of the third party will usually be the same throughout: to ensure a court understands your child’s wishes and feelings as best they can.
One issue legal professionals are very alive to, and which should be mentioned in connection with the comment from the fictional Ciaran, is parental alienation. Where parental alienation has been or is occurring, a child may say that they do not want to see a parent not because of their own feelings but because of how they have been influenced by their parents. The involvement of one or more third party is likely to be greater in a case involving parental alienation.
“I can’t believe that I am still dealing with this. It’s my wedding day and the idea of my parents being in the same room makes me feel like I am an anxious 10 year old all over again. But at least they are both there.”
Kirsty, age 29
Separation, from a legal perspective, is something which takes a certain amount of time and then it is over. Court proceedings are meant to end, if necessary with a final hearing, not to run and run. Whether I am dealing with a client’s divorce, financial settlement, arrangements relating to children or all three, there will usually be an order which signals some kind of end to each. The same is not always true, though, of the impact that separation may have. Proceedings end but the arrangements which flow from them, and the impact of those arrangements, may not. There can be implications for a family far beyond the end of any court proceedings.
During our discussions Lia talked about the evolving nature of the effects of parental separation. Whether due to a child’s own growing understanding of the complexities of relationships, later events re-triggering earlier experiences or perhaps bringing split families back together in one highly emotional space, there may not be a defined end for you or your children. The best thing parents can do, she suggested, is not assume that all is fine, resolved and in the past, but to keep communication open with their children, even as they grow into adults. Anyone’s experience of a separated family will grow and evolve with time and take various unique shapes and forms for each person. Earlier pain can transform into growth, repair and healing but it can also sometimes return: the feelings can shift from background into foreground depending on certain events and situations. Lia’s advice is simple but significant: acknowledge this and try to hold space to keep talking about it. Don’t file it away with the legal papers in a locked cabinet! And, always, look after yourself.
The paradoxical conclusion to the question of what a ‘good’ divorce looks like, where children are involved, might be this: it involves everyone admitting it doesn’t feel good. The separation may be a positive thing that is ultimately better for everyone but the experience of the process of separation, the grief, the often ongoing tensions through the years, may not feel good at all. It can hurt and that pain can manifest in different ways, at different times, and it may be made even harder because it is mixed with other feelings: relief, perhaps, and a sense of hope at a new chapter. Whatever the unique circumstances of a particular family, it is often really hard for children to deal with.
The ideal for most parents is to shield their children from harm. However, the reality is that they cannot always protect them entirely. The best they can do is to support them and help them develop the tools they will need to navigate through choppy waters when they arise. Trying to do this if you are separating is likely to be really hard and at points you might feel like you are ‘messing up’. So perhaps the best place to start is accepting that a divorce will very likely feel messy at times - for everyone.
But you can keep trying: to give your child your attention, your focus and an outcome which is best for them, even if these are not things you achieve all of the time. A ‘good enough’ divorce or separation might just look like one where you keep trying. Trying to hold on to self-compassion, trying to hold a space to reflect into your child’s experience and talk to them openly – trying to retain a sense of hope that you, and they, will come through this.
If you have any questions about the issues raised in this blog, please contact a member of our family and divorce team.
Cady Pearce is a Senior Associate in the family and divorce team. She works on complex financial cases and difficult cases involving children. Cady specialises in high conflict matters and cases involving personality disorders. Cady is empathetic, robust and works hard to develop strategies that focus on what is most important to her clients.
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