Do's and Don'ts for Parents in Divorce or Paternity Cases:
The Gitlin Law Firm, P.C., Woodstock, Illinois, © 2008
The following list of “do's and don'ts” is generally taken from one of the key books I recommend regarding custody litigation, “Psychological Experts in Divorce Actions” by Mark Ackerman and Andrew Kane, psychologists from Milwaukee. Their chapter which discusses the “do's and don'ts” of custody litigation states, “A client who is following most of the do's and few or none of the don'ts is in a favorable position to obtain custody; a client who is performing a few of the do's and most of the don'ts is in an uncertain or negative position to obtain custody.”
I found that the list of do's and don'ts suggested in the book were not specific to Illinois case law. Additionally, they were written from a psychologist's viewpoint and not that of a lawyer. For example, Ackerman has a suggestion that overnight visitation should not be allowed for infants (from birth to 12 months) but notes that this position is controversial. I found it simply outside of the mainstream of what many courts would order when faced with the issue -- usually at a temporary hearing. Accordingly, I have adapted the list of do's and don'ts to fit within the perspective of Illinois custody litigation. Remember, in potential custody litigation the goal is to avoid a dispute. I agree with the position taken by Ackerman and Kane that if a client follows most or all of the directives, in contrast to a spouse who follows far fewer, is in a very good position to prevail in a custody dispute (from the perspective of traditional adversarial litigation).
I tell all my clients that by remaining above the fray and doing what is right relative to the children is a difficult proposition. However, uniformly it results in favorable results. Parents uniformly want to do what is right by the children but often it is extremely difficult to do so when a client is undergoing the stress of the breakup of their marriage. Whether a case involves traditional adversarial representation or collaborative representation, there are some overall goals that you should have.
The overall theme is that these do's and don'ts ask you to love your children more than you may dislike or hate your "ex." The goal overall is to develop a business like relationship in which you and the other parent because business partners. One of the other goals is to "allow kids to be kids." It is suggested that the collaborative model may provide the best opportunity in many cases to do so. Nevertheless, whether a divorce is collaborative or adversarial, I believe the following detailed list of “Do's and Don'ts Within Custody Proceedings” may be of helpful. However, the best approach generally is to avoid yourself of a coach in the collaborative process or a counselor within the traditional adversarial model -- especially to assist with how to break in the news of a divorce to the children.
Summary of Do's Regarding Custody:
Engage in Mediation or Collaboration Before Litigation
Your Time Spent with the Children Will Lessen
Understand that Finances and Parenting Issues Don't Mix
Consider Joint Custody Rather than Sole Custody
Consider Sharing Holidays as Opposed to Alternating Holidays
Plan and Consult with the Other Parent in Advance of Activities for the Child(ren)
Try to be Flexible Regarding Visitation Times for the Other Parent
Do What Ever is Necessary to Resolve Any Angry Feelings Toward Your Ex-Spouse
Take the Children to a Therapist if Psychological Adjustment Appears Problematic
Encourage a Good Relationship between the Children and the Other Parent's Extended Family
Use Discretion Regarding The Time and Frequency of Calls to the Child(ren)
Recognize that Children May Feel Powerless and Helpless
Be Aware that Children May Feel Insecure and Exhibit Regressive Behavior
Be a Role Model for the Child(ren)
Make Plans Directly with the Other Parent — Do Not Make Plans Directly Through the Children
Maintain the Same Set of Rules in Both Houses (to the extent possible)
Do Consider Handling a Divorce Case Collaboratively
Do's Regarding Custody Detailed
1.Engage in Mediation or Collaboration Before Litigation: The research clearly indicates that cases in which the issue of custody is successfully mediated, result in greater compliance with agreements, a shorter period required for resolution of problems, less likelihood of re-litigation, and greater satisfaction with the parties' experiences. While there are those who disagree, I believe the same applies to collaborative practice. There are Supreme Court Rules which provide an "18 month" rule for custody cases. While at the outset of traditional adversarial proceedings, 18 months seems like a long time, if a case is to be tried and the necessary steps are taken to prepare a case for trial this is actually a relatively short time given the backlog in the divorce courts in which I practice (McHenry County, Kane County and Lake County, Illinois. Because of this many more clients and determining whether they can resolve their cases via collaborative practice -- before filing a divorce case. In both mediation as well as in a collaborative divorce, there are provisions ensuring that what is stated is generally confidential. As a result, you and your spouse can feel free to state concerns openly without fearing the statements will be used in future litigation. In the Fall of 2004, a new book was published titled, "The Truth about Children and Divorce: Dealing with the Emotions so You and Your Children can Thrive." The author, Robert E. Emery, Ph.D., a professor at the University of Virginia performed research demonstrating the benefits of mediation with a long-term study of the effect of divorce upon children. It was released in August of 2004. There has not yet been similar studies as applied to collaborative divorce. However, most collaborative lawyers have been trained in mediation and it is believed that the same benefits would likely apply to collaborative divorce cases.
2.Do Go to Counseling: Counseling does not need to be long term or even regular and periodic. Instead, I recommend to my clients who have minor children that they attend counseling for the simple reason that I believe doing so will inevitably improve their parenting skills in terms of learning how to deal with the other parent constructively. It is not "natural" to have a decent working relationship with one's ex-spouse. Instead, what is more natural is following the break-up of a significant relationship is to terminate one's relationship with the other person. In divorce cases with children, the challenge is to be able to love the children more than they hate or dislike their soon to be ex-spouse. The goal is to be able to develop a "business relationship" with one's ex-spouse. In a collaborative case, the role of the divorce coach may replace the role of the counselor (although a client is free to continue to go to his or her individual counseling). Often the parties to a divorce will agree to go to one counselor with the goal of improving their communication and focusing upon such items as how to tell the children about the future divorce.
3.Understand that Your Time Spent with the Children Will Lessen: All parties to divorce proceedings need to understand that two parents living apart will not see their child(ren) as often as two parents living together. Each parent must realize that the time their ex-spouse spends with the children is time that is no longer available to the other parent.
4.Understand that the Expenses of Two People Living Apart Will be Greater Than Two People Living Together: Divorce is not a zero sum game. Following the separation, the parents will have to spend funds for two residences, two sets of utility bills and the like.
5.Tell the Children in Advance that the Separation is Going to Take Place and Have the Discussion with Both Parents Present: Unfortunately, all too often, children come home from school to find that one of the parents has moved out of the house without prior explanation or an opportunity to discuss things. It is critical to prepare the children before the separation takes place. This discussion should take place with both parents present. This tells the children that even though their parents are getting divorced, they will still have the ability to work together in the children's best interest. It has been suggested that at a minimum (except in cases of domestic violence), children under six should be given several days notice and children over six should be given at least a week's notice. Parents need to tel the children that even though they stopped loving the other parent, they have not stopped loving them. It's a different kind of love that a parent has for a child. Children also need to know that it they should love both parents and that they never need to take sides. Even when one spouse is to "blame" for the divorce, the children should generally be isolated from learning about who is to "blame" for the break-up of the marriage.
6.Understand that Finances and Parenting Issues Don't Mix: It is critical for you to realize that time spent with the children and financial support are two separate issues, neither of which has an effect on the other. A father may withhold payment of support because he wants more visitation. A mother may withhold visitation because the father is behind in his child support payments. Both actions are wrong. Even more wrong is bringing up one issue or the other in front of the children. For example, I have been involved in cases where a father will tell the mother to get a job — while in front of the children. Similarly, there are cases in which the mother has demanded of the father what he pay support in front of the children. These sort of issues should not be addressed in front of the children. Similarly, be careful not to have conversations with others (including your lawyer) while in the presence of the children. I request my clients to tell me in advance during any telephone call if the children are present so as to ensure that there will not be substantive conversations when children over a certain age can hear what is being discussed.
7.Consider Joint Custody Rather than Sole Custody: The thesis of an article by my father and former partner about joint custody in Illinois was that joint custody was an experiment that largely failed but that it proved useful in avoiding custody disputes in many cases. I agree with the position that joint custody is often useful in avoiding custody litigation but I disagree that joint custody is “an experiment” which has largely failed. I believe that both joint custody and sole custody present problems. Generally, I define joint custody as being an arrangement in which the major decisions regarding the children are shared in some manner. (Keep in mind that in Illinois this is not necessary what joint custody means — however because this is a common misunderstanding it is a useful starting place.) Psychological Experts in Divorce states, “Parents who are granted sole custody often portray a feeling of ‘ownership' of the children which tends to lead summarily to the exclusion of the other parent. Even though two parents may not communicate effectively after the divorce, joint custody should be considered the optimal choice. Joint custody implies that the parents will be able to cooperate well enough to make joint decisions about such issues as the child(ren)'s education, religious upbringing, and medical treatment. In most cases, by the time the divorce has taken place, most of these decisions have already been made.” I agree with this statement. Generally, when representing the custodial parent, I ask that parent whether they have ever had a disagreement as to such issues as education, religious upbringing, elective surgery or the like. In the majority of the cases, the parties have cooperated well in the past in this regard. I will tell clients it is often said that the best indication of the future is the past. Psychological Experts in Divorce then suggests, “Sole custody should only be considered when one parent is clearly harmful to the children, is an active substance abuser, is chronically mentally ill, or has some other severe problem.” I believe that this is an over-statement, but the point is worthwhile. I recall studies which have shown that parents who have joint custody tend to spend more time with their children and tend to be more current in their child support obligations.
8.Consider Sharing Holidays as Opposed to Alternating Holidays: It is an overstatement to say that in the new millennium the concept of alternating holidays may be an archaic concept. It is better to say that if parents live in the same city, it may be best for the children to have contact with both sets of families during the important holidays. For example, one of my standard clauses provides that the non-residential parent will have a certain number of hours of time during each child's birthday. When the parents live in the same city or in the immediate vicinity, there is no reason that holidays such as Thanksgiving or Christmas cannot be shared so that the children have an opportunity to see both parents and their extended families for the holidays. This does not necessarily mean that Christmas Day or Thanksgiving Day must should be shared — although there is nothing wrong with sharing such days if the parties live in close proximity to one another.
9.Plan and Consult with the Other Parent in Advance of Activities for the Child(ren): This consideration applies to many factors in the overall development of children. When it comes to planning for lessons, athletic activities, recitals, counseling, extended medical treatment, etc., it is important for the parents to communicate with each other before implementing these plans. It serves to increase the acrimony between the parents if one parent makes plans without consulting with the other and then attempts to follow through with the plans without the other parent's input. Inevitably, I have found that when one parent makes unilateral decisions affecting the children, this is a negative in the court's eyes as well as the custody evaluator's eyes. Remember, one of the most significant factors in custody cases is the willingness of each parent to facilitate a close a continuing relationship with the other parent the child(ren). Surely, if the other parent does not even know about activities, that parent has no opportunity to be involved in the decision making.
10.Observe Time Schedules Regarding the Children Strictly [Including the Time Schedules for Exchanges of the Child(ren)]: The tardy parent should phone, explaining the reason for being late and giving the estimated time of the arrival. One way to reduce the likelihood of tardiness it to agree that the receiving parent will transport the children. Thus, I will often recommend that the visiting parent picks up the children and that the custodial parent pick up the children at the end of visitation — if the driving responsibility is shared. It is especially important to inform the other parent if a period of visitation cannot be exercised in as much time in advance as is possible. As a general rule, visitation should not be cancelled without at least 48 hours notice.
11.Try to be Flexible Regarding Visitation (Parenting) Times for the Other Parent: The corollary to being on time for visitation is that each parent should be flexible in implementing their parenting schedule. Lawyers will often tell their clients that they recommend a specific visitation schedule. Lawyers will also state that often the visitation schedule may be somewhat ignored to some degree unless either parent feels taken advantage of. In that event, then either parent has the right to insist that the schedule to followed as closely as is possible. No placement schedule can take into account all the possible exceptions that may occur. For this reason, flexibility is encouraged. It is important for both parents not to count up the minutes, hours or days that may be lost or gained as a result of this flexibility. The assumption is that in the course of a child's lifetime, the time spent by each parent will balance out. This assumes, however, that each parent is dealing with the other in “good faith.”
12.Do What Ever is Necessary to Resolve Any Angry Feelings Toward Your Ex-Spouse: This is easier said than done. Generally in divorce cases, one parent has come to the conclusion that she or she wishes a divorce for a significant period of time before seeing an adversarial divorce or collaborative divorce lawyer. Often, the parent who chooses to go forward with the divorce has come to this decision over the course of one to two years. The other parent, however, often does not understand the reasons of the necessity for the break-up of the marriage. There is a grief process for any party going through a divorce. The stage of grief have been oversimplified as Denial, Anger, Bargaining, Depression, and Acceptance. It is especially prevalent for the party who does not want a divorce often has significant anger -- often throughout the divorce cases and occasionally for years following the divorce. Research clearly indicates that there is a significant amount of depression in children whose parents are fighting years after the divorce. Ex-spouses do not have to love or even like each other. They must, however, be able to “deal with one another” and be able to be civil with each other in the presence of the children. I refer to this as developing a business relationship. You will be in the business or raising children together. Angry feelings will be conveyed to the children and can cause serious problems — in some cases, even clinical depression. Perhaps more important, is your responsibility not to send subtle messages to the children that you do not like the other parent — even when the other parent is not present. As discussed above, I have had many occasions when a client will unload about the other parents deficits. I try to encourage all of my clients to have conversations with me when they are certain the children cannot hear what is said.
13.Work with the Other Parent to Present a United Front When Handling Any Problems Relating to the Children: Children should not be allowed to manipulate the parents by playing one off against the other. Even in intact families, children learn how to work one parent against the other to try to get their way. This problem is much more profound following a divorce. If a problem arises and the mother and father respond to it in a different way, it presents the child with a clear opportunity to manipulate the situation to the child's advantage. Discussion should take place and ground rules in place for dealing with specific problems which can be anticipated.
14.Take the Children to a Therapist if Psychological Adjustment Appears Problematic: Parents should not be running into a therapist whenever a child has an adverse reaction to a divorce. However, adverse reactions that last for months rather than for weeks may become habitual rather than temporary. There is a difficult situation when one parent believes that counseling is necessary and the other parent does not. My impression is that most people err on the side of not having children (of a certain age) in counseling as often as would be helpful.
15.Tell the Children Early and Often that They are Loved by Both Parents, that the Divorce is Not Their Fault and They are Not Getting a Divorce from Either Parent: Too often parents assume that their children understand this truth even if they are not frequently reminded. During the separation period and shortly thereafter, children need to be told that they are loved. Children's concern may be, “You stopped loving Mom. How do I know you won't stop loving me.” One way to reassure children is to tell them that the love between spouses is different from the love between a parent and a child. Although the love between spouses can fade away, there is permanency to the love between a parent and a child — a love that began at the moment of the child's birth. By contrast, parents had to meet, fall in love and therefore could also fall out of love. Besides reminding the children that they are loved, it is important that the children understand that the divorce is not their fault. Many times children harbor feelings that somehow they may be to blame for the divorce. Children should be reminded that this is not the case.
16.Provide the Children With an Emotional Environment that Allows the Children to Continue to Love the Other Parent and Spent Time with That Parent: Children often realize that parents get divorced because they neither love nor like the other parent. They also recognize the acrimony between the parents. As a result the children can be fearful that there may be repercussions as to what might happen if they are friendly with the other parent. Children must be made aware that it is entirely acceptable and appropriate for them to show love and positive feelings toward the other spouse.
17.Encourage a Good Relationship between the Children and the Other Parent's Extended Family: The thinking expressed in paragraph 15 also apply to children's feelings about uncles, and aunts, grandparents and other members of either parent's extended family. For one parent to criticize the other parent's extended family only puts pressure on the child and increases the problems between the parents. While there may be questions about the constitutionality of the 2007 grandparent visitation legislation, parents should recognize that the children should not be getting divorced from their grandparents.
18.Encourage the Child(ren) to Remember the Other Parent on Special Occasions, Allowing and Encouraging Them to Telephone on a Reasonable Basis and at Special Occasions: If children are too young to be expected to purchase birthday cards, Father's or Mother's Day cards or cards for special occasions without help, the parents should encourage and aid them to make certain these occasions are recognized.
19.Use Discretion Regarding The Time and Frequency of Calls to the Child(ren): Parents must recognize that when the children are with the other parent, they will be involved in family time, quite time, homework time, etc. Frequent, unnecessary phone calls may serve to interrupt the child's routine with the other parent and upset that parent. Except in unusual circumstances (such as with very young children), daily phone calls are not necessary. As a general rule, phone calls two to three times a week should be sufficient. With younger children, often it is easier for the custodial parent to make the phone calls when the child is not involved in other activities.
20.Recognize that Children May Feel Powerless and Helpless: Children are subject to decisions about where they will live, with whom they will live, the school they will attend, etc., with little or no consultation. Further, if a judge is required to resolve disputes, some decisions will be made by a complete stranger. Therefore, recognize that children may feel both powerless and helpless about the outcome of their lives.
21.Be Aware that Children May Feel Insecure and Exhibit Regressive Behavior: Divorce is a stressful time both for children and for adults. First, there is the break-up of the family unit. Next, the family usually will move because the marital residence is often not affordable to maintain. It is not at all unusual for children to show regressive behavior when under stress. This behavior could include bed wetting, whining, tantrums or other similar behaviors. If these continue for a relatively short time counseling is generally unnecessary. However, if such behavior continues beyond several months, therapy may be warranted.
22.Be a Role Model for the Child(ren): Parents should remember that the children will model their behavior from what they observe. If the parents are angry, over-reactive, significantly depressed, they are likely to have children who are angry, over-reactive or unduly depressed.
23.Put Aside Your Differences With the Other Parent Long Enough to Allow Both Parents to Attend School Conferences Together: In custody disputes it is always a negative if one parent does not provide sufficient information, etc., so that the other parent can attend school conferences, etc. I have been involved in several cases where the custodial parent will list his new spouse or significant other as the other contact with the school and fail to even mention the existence of the other spouse. This provides an excellent opportunity for cross-examination because it goes toward a mind-set of one parent in which she or he is not encouraging the involvement of the other parent in the activities of the child(ren).
24.Both Parents Should Exercise Their Right and Their Responsibility to Consult with School Officials Concerning the Child's Welfare and Education: Under Illinois law, if a child is attending a public school, both parents have the right to access information about the child. See 105 ILCS 10/5 which provides, "A parent's ... request to inspect and copy records, or to allow a specifically designated representative to inspect and copy records, must be granted within a reasonable time, and in no case later than 15 school days after the date of receipt of such request by the official records custodian." While I believe it is important for the parents to cooperate to schedule school conferences together, each parent should be able to obtain information directly from the school, including report cards, school notices, school calendars, and the like. The school, however, will not provide this information separately to each parent unless asked. Therefore, make certain to ask for this information — preferably in writing.
25.Promptly Inform (and Consult with) the Other Parent of Emergency Medical, Surgical, Dental, Institutional or Mental Health Care of the Child(ren): An area of inquiry in many custody cases is a parents failure to promptly notify the other parent in advance (if possible) or as promptly as is possible thereafter of significant areas of potential concern, such as emergency medical care, surgery, dental care, counseling and the like. Often a parent will state that the other parent (often the husband), did not request this information in the past and that therefore there is no present need for this information. This is simply not the case. Failure to address such matters with the other parent goes toward each parents ability and willingness to facilitate a close and continuing relationship with the other parent and the child. This is one of the critical factors in Illinois custody disputes. When the above information is withheld, post-divorce litigation is often more likely.
26.Communicate with the Other Parent Openly, Honestly and Regularly to Avoid Misunderstandings Harmful to the Child(ren): As with many of these directives, this is easier said than done. Nevertheless, most child rearing difficulties between divorced parents are the result of poor communication between the parents. For example, assume a child tells Dad that Mom has criticized him, etc. It is important for the parents to be able to communicate to “check it out.” If communication between the parents is so poor that this is not possible, this allows the child to try to manipulate one parent against the other, which will in turn increase the acrimony between the parents. In the end, the child is being taught poor communication techniques both parents.
27.Make Plans Directly with the Other Parent — Do Not Make Plans Directly Through the Children: Examples in this regard include a child coming to the other parent and asking that the child skip visitation due to a party, extracurricular event, etc. Any time the children are in the middle of communication, it is burdensome for them.
28.Live as Close as is Possible and Practicable to the Other Parent — Especially if the Child(ren) are Young: Studies show that with young children, the frequency of contact is more important that the length of the contact. For this reason, especially with very young children it is extraordinarily helpful for the parents to live in the vicinity. Illinois law is restrictive about allowing removal. I have found as a practical matter, removal of the children from the state may be acceptable for older children if there is sufficient financial resources. In any event, however, parents should be encouraged to live as close to each other as is practical. Keep in mind, however, that living nearby is a goal that both parents should try to accomplish. However, living in the immediate vicinity is often not practical — especially following the remarriage of one or both spouses or a spouse's job relocation.
29.Maintain the Same Set of Rules in Both Houses (to the extent possible): Although it may be acceptable for the child(ren) to learn that different rules may apply to different settings, when the basic routines are far different, it can increase the child(ren)'s anxiety. Therefore, it is beneficial to keep mealtime rules, bedtime rules, homework rules, etc., as similar as is possible in the two households. This is also consistent with the maxim of providing a “united front” to the children. At the same time, recognize that you cannot enforce rules or discipline while the children are in the other parent's home.
30.Do consider Handling a Divorce Case Collaboratively: If there is not recent domestic violence, do consider handling a divorce case collaboratively. A collaborative law setting is much more geared toward focusing both parents and what is best for a children. It brings tools to the table to help both parents do so that are lacking in a traditional adversarial divorce.
Summary of Don'ts Regarding Custody:
Don't Agree to Any Type of Alternating, 50/50 Arrangements of Time Sharing with the Child(ren)
Do Not Move More Often Than is Necessary
Do Not Allow Children to Foster Feelings of Guilt Over the Divorce Process
Do Not Allow the Children to be in the Middle of Arranging (or Canceling Visitation)
Do Not Allow Your Client to Communicate with the Other Parent through the Children
Do Not Degrade or Argue with the Other Parent in the Presence of the Children
If You are the Non-Primary Residential Parent, Do Not Arrive Late or Not at All for Visitation
Don't Believe Everything the Children Say about the Other Parent
Do Not Agree to Split Custody Unless Absolutely Necessary
Never Allow the Children (No Matter What Age) to Observe Sexually Intimate Behavior
Do Not Allow the Children to Sleep in the Same Bed, Except in Very Unusual Circumstances
Do Not Ask the Child(ren) to Keep Secrets from the (ex-)Spouse
Don'ts Regarding Custody Detailed
1.Don't Agree to Any Type of Alternating, 50/50 Arrangements of Time Sharing with the Child(ren): In the 1990's it was recognized that the “standard” alternate weekend visitation schedule did not allow the non-residential parent to maintain an extended, ongoing relationship with their children. In part to avoid custody battles and in part because they were not aware of the pitfalls of alternating joint physical custody, I have seen many cases in which other lawyers incorporated into a joint parenting agreement some form of alternating joint physical custody. For example, I have seen schedules providing for alternating every weeks; alternating biweekly periods, etc. I do not generally recommend alternating split custody arrangements (e.g., one week on, one week off). Often there are schedules which begin to approximate equal parenting time which are not strictly alternating custody schedules.
Illinois case law frowns on alternating periods of parenting time. On the other hand, often in removal proceedings there is often what is close to an alternating schedule. In cases where the mother seeks removal, he father of younger children might be awarded virtually the entire summer while the mother. When parents communicate effectively with each other, are flexible and live within a very short distance of one another, a time sharing schedule close to an equal time sharing arrangement may work out. However, the nature of divorce is often that expecting such communication, commitment and flexibility may be impractical.
2.Do Not Move More Often Than is Necessary: Although several moves may be necessary due to a divorce, for the sake of the stability of the children, it is important to move as few times as is possible. For example, it is often necessary for a parent to move into a rental once the parties separate for the first time and into a more permanent housing within a year or two of the divorce. However, when children must move more than three or four times within two years, this can have a detrimental effect on their psychological development. Additionally, if there must be a move it is preferable to keep to the same geographical area.
3.Do Not Allow Children to Foster Feelings of Guilt Over the Divorce Process: I recall that when I attended a seminar by the AAML several years ago with a panel of mental health professionals about the effect of divorce on children, one of the best tips was that children (especially young children) often feel guilty about a divorce — even when a parent has done nothing to the children to promote such feelings. It was suggested that children should be told that the divorce is something between the mother and the father and that the children had nothing to do with it.
4.Do Not Allow Child(ren) (especially ages pre-adolescent children from ages 9 to 12) Refuse Visitation with the Former Spouse or Have Too Much Decision Making Power: This is consistent with Illinois law as to the input the children have in terms of where they live. Interestingly in a national survey, the average age in which psychologist and judges believe that the children's wishes as to their placement should be a paramount concern was approximately age 15. However, according to Illinois law the wishes of a child are only one factor to be considered. It is true that as children grow older that their wishes should be considered more and more strongly if those wishes are consistent with the child's best interest. The recommendation not to allow children to refuse to visit or to have too much decision making power does not mean that children always have to visit with the other parent. According to Illinois law if it can be shown that a parent may seriously endanger the child, then visitation may be restricted (e.g., not allowed or supervised). The point is that this is not the child's decision but a matter between the parents. When children of this age are allowed to have much decision making power, they might demand excessive and inappropriate power during their teenage years and in rare cases become somewhat uncontrollable. When allowed to decide something as important as whether they will visit with the other parent, children get the false impression that they have the power to make other equally important decisions. Keep in mind that children of this age are not allowed to choose whether they attend school or receive medical treatment, etc. It is possible that a child who refuses visits at this age is often caught up in a loyalty issue with the primary residential parent. Older teenagers, however may reasonably have some say in how much time they spend with the other parent and the timing of the placement. The point, however, is that even with older children, e.g., a child who is 16 years of age, communication should first still be made through the adults.
5.Do Not Take Sides or Take Issue with Decisions or Actions Made by the Other Parent When in Front of the Children: This is perhaps the most difficult of the suggestions made. When a child becomes involved in a dispute with one parent, it is important for the other parent to remain neutral if he or she was not part of the original problem or discussion. When one parent happens to disagree with what the other parent has done, discuss this disagreement privately. After the private discussion, then the children can be told of the resolution. If a resolution cannot be reached the children may be told how the lack of a resolution affects them. This concept is part of the “presenting a united front,” position. One father that I knew who had a generous parenting schedule, put it this way. When in front of the children he said he would always “bit my tongue.” He stated that this new wife did not always understand why he did not take issue with his “ex” in front of the children but he told me that he always was able to maintain a close relationship with his children and work on a cooperative basis with his ex-spouse. Disagreements were voiced away from the children.
6.Do Not Allow the Children to be in the Middle of Arranging (or Canceling Visitation): Visitations should be arranged with the other parent. Often, I have had cases in which a child when the child is being exchanged for visitation will tell the other parent that he or she has certain activities, sleep-overs, etc., and therefore would like to come home early, etc. As the children become older, they should have some input in this regard. However, the children should not directly address their wishes in this regard to the other parent before the parents have had the opportunity to directly address the issue in private. Otherwise if there is a disagreement, one parent will be forced to break that “united front concept.” The best response for the father in this situation would be, “your mother and I will discuss it.”
7.Do Not Allow Your Client to Communicate with the Other Parent through the Children / Do Not Allow Children to be a "Spy": Parents find that it is convenient to allow the children to relay messages to the other parent because they are not communicating effectively. This violates the rule discussed above about not putting the children in an awkward and inappropriate position. Additionally, do not allow or encourage your children to be a "spy" on the behavior of the other parent.
8.Do Not Send the Check with the Children — Even in a Sealed Envelope and Do Not Hand the Check to the Other Parent in Front of the Children: The problem with doing so is that the check can be lost and once again the child is in the middle of a dispute. If a check is not paid through the State Disbursement Unit through a notice for income withholding, put the check in the mail. At to handing the check to the other parent in front of the children, I know of too many cases where this becomes problematic. It provides too many opportunities for discussions in front of the children about child support payments and the like — which should be handled privately.
9.Do Not Degrade or Argue with the Other Parent in the Presence of the Children: The prohibition about arguing with the other parent in the presence of the children is an obvious one. The rule that you should not even subtly denigrate the other parent in the presence of the children is much more subtle. Children realize the “lay of the land” much more than parents give them credit. When one parent harbors resentment for the break-up, I have heard the “wronged” parent say things such as, “My children deserve to tell the truth,” and “I will not lie to my children.” Children do not always need to know “the truth” about such things as who was at fault for the marital break-up. More subtle than this is a parent who, when discussing the other parent, will inevitably become angry, etc. The children will often in such cases side with the primary residential parent. The problem with this equation is that the strategy in many custody cases in which father's win is that they paint the children as alienated due to the actions by the primary residential parent.
10.If You are the Non-Primary Residential Parent, Do Not Arrive Late or Not at All for Visitation: An angry parent may arrive late for visitation in order to get back at the other parent. After all, it would certainly disrupt the other parent's schedule to be forced to wait around for the ex-spouse to arrive — especially if she has plans for the evening, etc. However, it is the children who are hurt most by this. Many stories have been told of children who sit around looking out the living room window waiting for a parent to arrive only to end up feeling rejected when the parent arrives late or fails to arrive at all. Unfortunately, in Illinois there is little that can be done to the parent who fails to exercise visitation other than punish that parent by withholding more visitation. The support guidelines in many states are based in part on the time sharing arrangement between the parents. This is not the law in Illinois. As unfair as it is, a parent who never sees the children must pay the same amount as a parent who sees the children 45% of the time (except in the unusual case of a deviation from the guidelines).
11.Do Not Discuss Any of the Financial Aspects of the Divorce Process (Support, Maintenance, Arrearages, etc.) with the Children or in the Presence of the Children: I believe this is perhaps the most difficult prohibition for parents to implement — especially when parents fail to pay support on a timely basis and especially when the other parent is at fault for the divorce. Perhaps one of the problems with Illinois' version of “no fault” divorce in which fault cannot be generally considered as to property distribution (except for dissipation), custody (except for matters which directly relate to the children and maintenance is that the parties cannot vent their anger through the court system. Perhaps as a result, one way to a parent's feelings often come out is through the children and by bringing up financial issues to the children. I have heard parents state things like, “the children need to know what kind of man their father is,” when they tell the children that their father broke promises to them that things would be the same financially after the divorce as it was before. The simple fact of life is that parties cannot live as inexpensively apart as together. It can become very frustrating for parents to try to balance their newly more limited budget. As part of this frustration, they may express anger toward the other parent over financial issues. However, if such discussions are to take place it is critical that they take place when not in the presence of the children. Doing so requires the children to deal with an adult problem that they are not emotionally prepared to handle. Further, it embroils the children in the bad feelings between the parents. When activities and purchases must be limited because of limited or late support or maintenance payments when dealing with older children, the parent should explain such matters only to the limited extent necessary, in a nonderogatory, nonaccusatory manner. For example, a parent should not say, “We won't be able to go to the movie tonight because your father is such a jerk and we cannot count on him to give us the money when he should.” Instead, a parent might say, “It's frustrating to me and I'm sure it's frustrating to you that we don't have enough money to go to the movies, but we can't afford everything we want to do.”
12.Don't Believe Everything the Children Say about the Other Parent: When one parent automatically believes everything a child says about the other parent, it is often the beginning of further battles in court or other problems. Even in intact families, the children may tell preposterous stories to the parents. If one parent hears something from the child about the other parent that sounds unreasonable, before posturing or preparing for battle it is appropriate to try to verify the child's statement with the other parent. If one parent cannot provide a reasonable explanation for what a child has said, it may become necessary to pursue the issue in other ways. I can recall one case I was involved in which the father was basing a petition to change custody and to and to restrict access to the children (via an order of protection) by what a child had said. My client came to my office with a letter written only months before this in which the children had said things about the father and the father had acknowledged that the child often says outlandish things about both parents and therefore should not be believed. There was nothing further to back up (corroborate) the child's statements. Not only was the petition dismissed but the father had to pay attorney's fees for bringing the action. A few years ago I went to a seminar by Dr. Stephen J. Ceci, Ph.D., in which the point was that children and especially young children are extremely prone to suggestions — even suggestions that are not necessarily intended. Because suggestiveness can be subtle and unintended, it is one more reason to be careful about believing everything said by children — especially young children.
13.Do Not Agree to Split Custody Unless Absolutely Necessary: Except in very unusual circumstances, it is generally a bad idea to separate the children. This is consistent with Illinois law in which there is a presumption that split custody is not within the best interest of the children. The exception to this rule is that when there is a very large family, for example, a family of six. In certain of these cases I have found that an arrangement for split custody may make much greater sense than in families of more normal size (two, three or four). However, even when children live separately there should be as many periods of placement in common as is possible.
14.Before the Divorce Do Not Introduce the Children to a Person with Whom You are Dating — After the Divorce Do So Only with Great Discretion: It is difficult enough for children of divorce to deal with the termination of their relationship between the parents. Their burden increases if before the divorce they are introduced to the person their parent is dating. Not only does this send the wrong message to the children but it also is likely to breed resentment with the other parent. Some judges will restrict either parent from having a member of the opposite sex reside an overnight basis with the other parent when the children are present — before the divorce. My experience is that most family lawyers will advise their clients that this sort of sleep over arrangement is a mistake. I go further. As discussed in my Q&A regarding dating during divorce cases, I advise a client not to even let the other spouse believe that they are dating. After the divorce, if a child is introduced to frequent non-marital companions of the opposite sex, it can result in false hopes and unrealistic expectations and lead to recurrent feelings of rejection. Once, following a divorce,, that a relationship has progressed to the point of becoming a meaningful one, it is best to slowly introduce the children to that individual.
15.Never Allow the Children (No Matter What Age) to Observe Sexually Intimate Behavior: This should go without saying. This applies to both married and unmarried parents and applies even if the children are “screened off” from the adults bed. Although it may appear nature to expose children to this sort of intimate behavior, children are not psychologically prepared to deal with such observations during childhood.
16.Do Not Allow the Children to Sleep in the Same Bed, Except in Very Unusual Circumstances: Some parents believe that allowing young children to sleep with them reduces the trauma on the children due to the divorce or separation. Allowing children to sleep with their parents under these circumstances can result in unrealistic expectations of the child. Additionally, allegations of sexual abuse occur in divorce proceedings. Such allegations (even when unfounded) are devastating to relationship between the parents. Allowing children to sleep in the same bed — even when done for ostensibly good reasons — is a mistake.
17.Do Not Ask the Child(ren) to Keep Secrets from the (ex-)Spouse: There are common instances where a parent may want a child to tell al lie. An example, if is a parent is late in picking the child up from an event. It is very disconcerting to a child for a parent to tell him or her, “Whatever you do, please don't tell your mother,” or “Be sure not to let your father know.” This places the child in the middle of a conflict and encourages the child to be deceptive, and engenders guilty feelings by the child if the child feels pressured to keep secrets from the other parent. Even innocent “keeping secrets” type behavior has come back to haunt parents when sexual abuse allegations have been made.
The Gitlin Law Firm provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case.
The Gitlin Law Firm, P.C.
Practice Limited to Family Law
663 East Calhoun Street
Woodstock, IL 60098
815/338-9401
Gitlin Law Firm, P.C.
Updated: January 1, 2008