My Blog

My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.

Wednesday, April 15, 2020

Qualities of family lawyer


When you think of a lawyer what springs to mind?  Someone aggressive?  Someone who would argue over “two flies going up a wall”?  Someone with bags of money and a lifestyle to go with it?  Someone capable of great charm when needed but without much sincerity behind it?  Someone who may not tell outright lies but who can put a great spin on things?  All of the above?  So, when you pick a lawyer, how do you make the choice?    
  As a practising lawyer what do I think are the most important qualities of a family law solicitor and who would I look for if I was going through the system? For me the most important quality in a solicitor is honesty.  I am not talking about fiscal rectitude necessarily but of course that too, but someone who will tell you the truth whether you want to hear it or not, someone candid without being brutal.  It does not have to be communicated harshly but you do have to hear it.  The truth about possible outcomes in your case, the truth about costs and the truth about how Judges look at these matters.  If you go into a solicitor’s office and he or she tells you everything you want to hear, run a mile, you are not being told the truth.  What the solicitor is doing is telling you what you want to hear so that you will become a client of their office and by the time you find out that things are not going to turn out this way, it will be too late.  The first thing to understand is that the best interests of the children is the paramount consideration for an Irish Judge.   Secondly, in Ireland the family court judge has to make “proper provision” for both parties.  The best interests of the children may not match exactly with the interests of one or other parent.  For example, the Judge will always want to ensure that the children are housed and this does not always work with one of the parent’s interests.  Where possible the Judge will try and ensure minimal disruption for the children particularly in relation to their schools, however, minimal disruption is not a rule and where it makes sense the Judge will permit property to be sold thereby causing some disruption. Proper provision means providing for both parties from the available resources having regard to the children’s best interests. 
The second quality is an expertise in the field of family law.  Knowing how Judges react to situations and having experience of having run many cases before various courts and Judges is vital in ensuring that you have someone who will help you strategise and navigate your way through the system and who also knows the other practitioners in the field. This quality presents you with an excellent opportunity to settle your case and settling is always in your interests.
A good settlor.   Keeping legal costs to a minimum is a priority for most clients and nothing will contribute more to ensuring that than a solicitor who prioritises settling your case.  A good settlor however, is more than someone who wants to settle, it is also someone who works hard to create conditions conducive to settling.  A good settlor is also someone who doesn’t wait until the last minute to see if a case can be settled.  Settling on the steps of the court will not keep legal costs to a minimum since most of the work is already done. 
Time.  Your solicitor is prepared to give you the time you need, knows who you are when you come in to see him or her and has read your file in preparation for the consultation.  He or she does not take calls when you are with them except in very rare circumstances.  For the most part they take your calls or answer your emails and only occasionally are not available but will get back to you as quickly as possible. 
If you are seeking a mediator, a collaborator or some other form of expertise in Alternative Dispute Resolution, you need to be sure that your solicitor has that expertise and they are specially trained.  In addition to the actual qualification, your solicitor should have experience of working in this area. Do not be afraid to ask the hard questions.  A solicitor without experience or qualifications in the area you seek, is unlikely to encourage you to try this way of resolving your case.  So, knowing what you want and picking the person who meets all of your criteria or most of them is key.    There is no doubt that mediation and collaboration are the most cost-effective ways of resolving your matrimonial or relationship disputes and so do not be put off.  Of course, remember that it takes two to collaborate or wish to mediate and your solicitor does not have control of that. 
Your solicitor should be someone who is recommended to you and who is highly thought of in their field.  They should be informative so that when you leave their office, you feel your questions were answered and you know more than when you came in.  For the most part they should be kind and patient with you and where some impatience comes into the picture it should be the exception rather than the rule.
While you did not need your solicitor to be your buddy, it helps if you and they share an approach to the issues of your case.  Studying their website may give you a good indication of the values of your solicitor and their approach to things.   
People often think that having a solicitor close to where they live is a must.  Provided you can make the odd appointment it is not as important as it might seem.  Technology allows for interconnectness as we are all finding out now in this time of Covid 19.  It is also a mistake to think that aggressiveness is an essential quality in a solicitor.  In fact the last thing you want is an aggressive solicitor since he or she is likely to ratchet up costs.  What you want from a solicitor is assertiveness, good communication skills and friendliness. 

Tuesday, March 24, 2020

Parental Alienation

Parental Alienation is a hot topic.  Many believe it does not exist.  Some seek statutory provisions which would effectively make it a criminal offence.  There are also differences of opinion as to how this behaviour should be addressed and by whom.  Equally, there are those who passionately argue that it is a major issue which needs to be addressed now.  I come across something resembling parental alienation almost every week in my practice.  It presents with varying degrees of seriousness.  In some cases, the alienation is almost total and has been going on systematically for years. In others, the parties are not separated very long and the non-residential parent suspects that the children are being slowly turned against him/her generally manifesting in a cut back of the access time without explanation. The non-residential parent is advised that the children have activities scheduled on his or her access days or that they are sick a lot. Sometimes the residential parent advises that the children have expressed a definite view that they do not want to go on access and the parent residing in the house is unwilling to make them  In any event, one definition of parental alienation is that “parental alienation takes place when a child sides with one parent and rejects the other parent without justification and despite a previously loving relationship”.  Another definition is “Parental alienation is a deliberate attempt by one parent to distance his/her children from the other parent.” There are important components parts to these definitions, and they need to be each examined carefully.  Parental Alienation can happen to either parent.  It is not just something which men experience though in my legal practice it seems to be mostly men who believe that they are experiencing this.  The second thing to note about the definition is that parental alienation only exists if it occurs without justification.  In the second definition, it is characterised as a deliberate attempt i.e., not something which occurs without the parent being aware they are doing it.  I think when you insert the word deliberate it becomes clear that this is something rare and not something common. In the context of marital breakdown, it is my experience that the hurt experienced and, depending on the surrounding circumstances, the disappearance of trust can cause the hurt and mistrustful parent to react negatively to access.  This happens when a residential parent fails to distinguish between their own feelings of betrayal and those of a child/children.  Occasionally, the rejection of a parent by a child is a logical move on the part of the child.   It may be a reaction to emotional or physical abuse of themselves or the parent which the child witnessed or knew about.  Accordingly, the child takes a stand against the abusing parent. The child appears to side with one parent but in essence, they are rejecting the behaviour of the other parent. In each case, the historical context of the alleged alienation must be examined as a first step. A child may not have been abused but might have witnessed abuse.  Occasionally, an abused parent may have managed to keep the reality of their abuse from the child, however, the abused parent may have rational fears for the children when alone with the abusing parent. Accordingly, the starting point must always be to ask if the child has a valid reason or reasons for rejecting a parent such as abuse or neglect.  Sometimes accusations of parental alienation can be used to protect abusing parents.  Finally, the phrase “despite a previously loving relationship” is a key component of the definition.    If a parent has been away for long periods during a child’s life or spent very little time with the child even while the marriage was ongoing, then it is unlikely that the child/children will want to exercise a great deal of access with that parent.  It is very rare for a child who had a previously loving relationship with a parent to cease all contact with that parent.  Once the evidence points to a previously loving relationship, then we are probably looking at a parental alienation case. 
Studies have shown that adult children who endured parental alienation suffer from low self-esteem, self-hatred, abandonment issues, lack of trust, depression and are more likely to have substance abuse or addictions. It, therefore, behoves us to treat it with a great deal of seriousness and to educate ourselves about the concept of parental alienation. While family law practitioners in Ireland are familiar with the term, the law does not recognize it, despite the fact that the World Health Organisation now recognizes and classifies it. As well as the term parental alienation, which was coined over 30 years ago, the term parental estrangement is also useful and it can be used to  describe the earlier stages of difficulties in child contact before it becomes a case of alienation but where the effects are the beginning for the non-residential parent are similar to those affected by parental alienation.  Unfortunately, it is a term also used to describe teenage children’s difficulties with their parents so it needs to be used and defined precisely. Quite often, well-meaning parents, whose primary trust relationship with their life partner has broken down, cannot differentiate between their own sense of betrayal and mistrust and the entirely different feelings a child or children might have.  In time, when the edge has gone off things, parents usually come to see clearly those emotional distinctions between themselves and their children.  As a result, the situation naturally calms down but sometimes things do not calm down and such people need assistance.   The assistance at an early stage needs to come in the form of ADR (alternative dispute resolution) early in the separation process and it should involve some of the myriad forms of mediation and counselling which include co-mediation, one mediator, managed negotiations and collaboration as well as serious programs for change and education.  In my view co-mediation and collaboration would be best suited for these type of cases as both parties need to be held and teamwork will achieve that best.  The worst thing that can happen at the estrangement point, would be lengthy delays in our ability to provide solutions during which time the children gradually become more estranged leading inevitably to alienation from the non-residential parent.  It is for this reason that awaiting a child psychologist’s family report and recommendations, as often happens in a court situation,  where there have been initial delays in getting to see the family psychologist and then further delays while the process is ongoing and awaiting the report, may not lead to a successful outcome.  By the time all that has taken place, the damage may already have been done between the period of time that elapsed before the agreement to appoint the child psychologist is put into place and the period that elapses during the process.  Time periods of 9 months or a year can be very long in a child’s life.  If one parent is withholding access from the other, then that situation will likely remain in place until the report is done and that in itself creates estrangement.  If, for example, a residential parent is alleging that the non-residential parent is a neglectful or irresponsible parent and even an abuser, the courts will be slow to award access pending the report.  While the court system, which is exceptionally prone to delay, backlogs and build-ups may not be the ideal place for this type of examination, a recognition of the concept by the court and how it might play out in family disputes is vital as this would lead to an early intervention to prevent long term effects for children.  
What should happen when a person is found to be engaged in parental alienation?  The answer to that may well partially lie with at what stage the behaviour is characterised and categorised.  If it is still early days, the damage to the child/children may still be capable of being reversed.  At this point also, the child may not suffer undue effects from a little coercion to repair the relationship with the estranged parent.  We have to be very careful to ensure that a child, through no fault of its own, is not put in a position and certainly not accidentally, where he or she is effectively being punished in their own mind by having time taken away from one parent and given to another.  It is for this reason, that changing custody of children arising out of withholding of access, by a court, may well turn out to be unintentionally punishing the child as a consequence of punishing the estranging parent. I am drawing a distinction however, between the manner in which we address estrangement and the manner we should address parental alienation. 

It is widely suspected that people who engage in parental alienation, i.e., deliberately and systematically destroying a previously loving relationship between a parent and child, are people with personality disorders.  Not everyone with a personality disorder becomes a high conflict personality.  Cases of parental alienation are characterised by a high level of conflict. A personality disorder combined with being a persuasive blamer seems to be a key ingredient to becoming a High Conflict personality which in turn is essential for parental alienation to occur.  

When high conflict personalities are in dispute, there is, as far as they are concerned, nothing to discuss or negotiate.   High Conflict Personalities will seek representatives who specialise in blame style litigation.  People with personality disorders have enduring patterns of behaviour. It takes strong consequences to change them.  Well intentioned lectures and routine negative feedback about their dysfunctional actions will have no effect on their behaviour. Consequences need to be logical and directly connected to solving the problem.  If the problem is chronically abusive behaviour, part of the consequence should be a requirement to change that behaviour as well as further consequences if the abusive behaviour happens again.   
If the problem is related to misperceptions and false allegations then psychological treatment and legal /or financial consequences should arise. An assessment will need to be made, no matter how carefully the situation is managed, as to whether the enduring pattern of behaviour is inherent in the alienating parent’s personality making it impossible to alter. 
If that is so, then the only logical response may be moving the child/children into the custody or care of the non-residential parent. This may have the unintended consequence initially of seeming to punish the child but research shows that this unintended consequence quickly rights itself. High Conflict personalities need strong and structured consequences.  A program of change is necessary.  Orders without consequences will have no value whatsoever.
One of the problems in our system is the lack of consequences arising out of a breach of orders or disruptable behaviour, particularly when the issue is children rather than finance.  For a long time, the courts had no power to order the parties to engage in treatment programmes.   Rather than punishment and blame, the focus should be on treatment programmes if there is substance abuse, Domestic Violence programs, parenting classes and individual counselling and on alternative dispute resolution all carefully managed by the court. 
This is where Section 60 of the Family Relationships Act may come into its own because not only can the court order treatment programmes it can also order costs against a party where behaviour warrants it.  

One of the problems in the Irish Family Law System is the apparent lack of consequences for breaches of orders, particularly in the area of children.  However, you should note that Section 60 of the Family Relationships Act 2015 amends the Guardianship of Infants Act 1964 by the addition of Sections 18A 18B 18C and 18D.  Section 18A allows for an Enforcement Order to be made where an access/custody order is in place and a parent is unreasonably denied such custody or access by another guardian or parent of the child.  The granting of an Enforcement Order is subject to the party who is denied being “unreasonably” denied access or custody.  The court must also have regard to the best interests of the child and whether or not given surrounding circumstances such an order is appropriate.  If an Enforcement Order is made the court can extend the terms of the original court order to provide additional access to make up for time lost or as the “court may consider necessary in order to allow any adverse effects on the relationship between the applicant and the child caused by the denial referred to in Subsection (1) to be addressed”.  The amendment also provides that the Respondent may be ordered to reimburse the Applicant for any necessary expense actually incurred by The applicant in attempting to exercise her or her rights.  The newly inserted sections also make interesting insertions for the court to order the attendance for counselling either individual or family, parenting course and recommendations in relation to mediation.  In layperson’s terms this means that if you are a person who has an order giving you access for example, and you have tried every reasonable means to secure that access as granted by the order.  If, despite your reasonable efforts,  you are thwarted and denied at every hands’ turn, you can now apply under the Guardianship of Infants Act 1964 as amended by S 60 of the Family Relationships Act 2015 to the District or Circuit Court seeking an Enforcement Order.  The court can also order in a specific way how the time is to be made up to you that you have lost and further award you the costs or expenses of having to make such an application.  Of course, the court is not going to just grant you an Enforcement Order.  In each case, the Court has to be satisfied that the denial of access was unreasonable and that it is in the best interests of the child to make the Enforcement Order with the extra provisions which might be sought as outlined above.  The beauty of this Section is that it allows an applicant to apply for enforcement rather than just breach and it allows for this application to be made in The district as well as other courts.  While the legislation does not mention the word ‘sanctions’ it provides for the court to at least consider an application for costs and furthermore, provides a provision to redress the balance and allow for extra time to make up or as the court orders.   It is a welcome advance on the previous situation.

Thursday, November 14, 2019

Child abuse allegation

There is no doubt that our increased focus on children, their needs, rights and our duties toward them are a positive development. It is a long way from the position we tended to have less than 50 years ago where we felt matters concerning children were private and best kept to the family.  We need, however, to be careful that we are not just paying lip service and there is very little real back up to our intentions, good though they may be.  We continue to place a heavy responsibility on organisations such as Tusla but we do not increase their funding to allow them to adequately deal with their new responsibilities and to secure the necessary retraining.   Nonetheless, we continue to have high expectations of what they can deliver.  We are also inclined, it seems to me, to implement reforms but not to examine in any depth the pros and cons of such reforms and their implementation.  In other words, we like to feel good about ourselves and once done we seldom want to hear or deal with the problems and are aghast when predictably things go wrong.  In my lifetime, I have seen this played out several times.
It is increasingly obvious that one of the downsides of our current approach to the welfare of children is the fall out from falsely levelled complaints to the child authorities.  Unfortunately, we only have anecdotal evidence to fall back on regarding this, however, every solicitor working in the area of family law can tell some tale about the disastrous impact of false allegations of child abuse. I have dealt with foster parents falsely accused whose livelihood was disastrously impacted as a result not to mention their reputation and standing.  Ireland is a small country and this type of scandal does not remain under wraps for long.  I have also dealt with family law cases which are held in camera (i.e., in private) and where such accusations were either levelled or implied in the course of the proceedings.   The outcome from such accusations is likely to be an impaired relationship for one parent with his/her children.  I don’t think it is unduly sexist, simply realistic, to say it is usually “he” in these situations.   It is an easy accusation to make and the stench it leaves sticks to the accused long after the authorities have parked the case.
One of the biggest difficulties for a parent accused of child abuse is that there is little he can do to defend himself as the first reaction of all concerned will be to remove him from contact with the alleged victim.  Of course, this is entirely understandable, but it does mean that the parent is, in fact, proving his innocence from a guilty position rather than the reverse.  One of the things that are often said is that whatever we have to do to protect children in these circumstances is ok but is that true if in protecting children we make it easier to make false accusations in situations where there is an advantage in doing so.  False claims of child abuse sway custody proceedings and affect relationships.  It is noticed and remarked on by practitioners how false allegations often correspond with visitation and custody disputes.  It has also been said that as family law becomes less contentious and more orientated towards peaceful resolutions, a bitter or angry party can resort to extreme behaviour to make themselves feel better and one such type of behaviour might be to level a false accusation.  I do not know if this is necessarily true, but we need to examine it.  Perhaps there is some need for the catharsis of a good old purge.  When a spouse is bitter and angry about the breakup and perceives that the other spouse has behaved badly and is getting away with it, they can find the reality that bad spousal behaviour has little impact on separations and divorce outcomes, very hard to take.  I think that people who are locked in a conflict situation with someone they formally loved can begin to see that former loved one through a distorted lens. Litigation in and of itself can provoke anger and the need for revenge.  I often hear that one party finds the other unrecognizable since the break-up was announced.  The hurt and confusion of a breakdown combined with the feeling that the other party is unrecognizable can and does give rise to a breakdown in trust and can then evolve into full-on paranoia.  Of course, some people make the accusation knowingly and do so to get rid of the other party entirely from their lives or to punish them for what they have done.  And then there are these others that I feel exist who are not directly culpable but rather delusional but delusional or not the consequences for the accused parent are such that we cannot just pass over this.
And so, what do we do about it?  We cannot let people be falsely accused, their lives blighted with no redress.   It’s astonishing how quiet the world is about this but then when you consider the opprobrium in which child abusers are held, it is perfectly understandable why those accused falsely would not mount campaigns around this. People love the saying “there is no smoke without fire”!  This issue is receiving little attention in Ireland but has come in for a lot of professional attention in the USA.  We need to consider sanctions to deter the perceived advantages of making a false allegation without preventing legitimate complaints being made.  That is not an easy balance but we cannot simply wash our hands of it as if false accusations were just collateral damage.  The wrongly accused person may be subject to exclusion by friends and family because of the allegation.  Employment and future career prospects may be impacted.  Allegations can send detrimental thoughts into the minds of children causing permanent damage to a child’s relationship with the accused.  Because of the need to protect the child as soon as an accusation is made, access will at the very least be supervised and the effect of this on a child will likely be to leave him or her with the impression that they are not safe with the accused parent.  False accusations make it harder for real victims and false accusations are never in a child’s interest, on the contrary, they are directed against the best interests of the child.
It is not beyond legal minds to define frivolous or vexatious complaints giving rise to a false accusation of child abuse in depth.  Such a definition would embrace the circumstances surrounding the frivolous or vexatious conduct so that good faith allegation would not be caught in the net.  If parents make allegations of child sexual abuse or other types of serious abuse when they are in fear of losing custody, time or control of their children to another qualified parent then the existence of severe penalties were they found to have done so knowingly would act as a deterrent.
In Family Law, the Judge is primarily charged with adjudicating the case with any dependent child’s best interests to the fore.  False allegations need to be reviewed under the principle of the recognition of the best interest of the child.  We should empower the court to sanction if it becomes clear in the course of a hearing and under the legal definitions that a false accusation has been made.  Those sanctions should reflect the seriousness of the matter as outlined above and need to send a very strong message.  The aim of the law should be to protect both the wrongly accused parent and the best interests of the child involved.

Thursday, January 24, 2019

Spousal Support/Maintenance/Alimony.

One of the most controversial areas of family law is the issue of whether or not post-separation/divorce an ex-spouse who had been dependent or semi dependent should continue to be financially supported and if so to what extent, for a number of years or indefinitely, to a previous financial standard or close to it or to some other to be determined standard of a lesser nature. These topics are hotly debated by lawyers with each other and in front of Judges. Even in the case of spouses who both work it can arise if there is a big disparity in income. Not too surprisingly, the prospect of having to support an ex indefinitely, and sometimes even for a short period, is one that exercises the mind of the possible supporter to an excessive degree and can colour what might otherwise have been a fairly measured approach to the division of assets. Ex-spouses or partners in this position will wonder if continuing to work to the same exhausting degree as previously, is now worth it? 
Lawyers faced with this issue will often stress the difficulties for women in returning to work after a prolonged absence, loss of confidence in their abilities to navigate the workplace or in the value of their contribution, need to retrain, lack of technological know how etc. On the other side some lawyers will argue that a willingness to at least try and return to work would go a long way. Still others will suggest a retraining period or even a return part time plus some retraining and the remainder will just argue that a return to work is on the cards. 
As a long time, feminist, I tend to feel some sympathy with male resentment. I sometimes think that self-respect should determine a willingness to return to some form of paid employment. Many of the women involved are well-qualified and could at least try. Are these women lazy? Are they used to a particular lifestyle now? Are they unwilling to change?  Surely if you had spent a good deal of time, energy, money and graft in qualifying and climbing up a career ladder – you would want to get back to it asap? 
Before trying to answer these questions, I want to contextualize this debate. Very often in the course of a marriage, couples have divided up tasks in a way that makes financial and practical sense for their home lives. If one party earns more or has more career potential, then it can be practical or make financial sense for the other to downsize their own ambitions and focus their energy on family. The intention can often be that when the kids reach a certain age, the partner who back-seated his or her career at the altar of family life will return to work or College or will, at that time, be afforded an opportunity to focus on his/her own specific career opportunities. In reality, the partner who most often makes this sacrifice is female but that may change going forward. Sometimes, however, that conversation does not actually take place, it is more a silent understanding. Quite often, such understandings are often imagined as shared but are not shared at all and that discovery is only made when the marriage/partnership is in difficulties. This can lead to added layers of disappointment and anger. Even when the conversation is heard and remembered, there may have been life changes which would make such a well-intentioned agreement impossible e.g. marital breakdown, drop in salary, change of work location, sickness etc. If the relationship breaks down it is quite often the case that even if there was a will, there are insufficient funds to run two households and provide extra money for College or to remain at home and very often the parties are facing not only the ruins of their relationship but also the ruins of a lifestyle plan such as a return to College.  Looked at in a different way, it is worth remembering that men are very often enabled to shoot up their career ladder because women are prepared to take a back seat on their own career. It is also true however, that men can often work at unpalatable or dangerous jobs to ensure good pay because they are supporting families. A man’s ability to change careers is curtailed by his responsibilities or to take less paid work which might be more conducive to him. What is important here is that we do not make too many generalizations and that we see everything in its context.
In my experience, most women are prepared to contemplate a return to work but are hugely lacking in confidence that they can earn enough money or that anyone will want to employ them now. There are a few who genuinely have no intention of returning to work or who are ill and cannot contemplate return. Most women, who appear not to want to consider a return, are afraid that they will wind up with insufficient money post separation/divorce. Therefore in negotiations or in court, they present themselves as unwilling, incapable or unable to return to work so as to maximize the spousal financial support they might get. Lawyers are often hostage to their own prejudices in this situation. Their attitudes can be guessed at depending age and gender. Male lawyers will seldom encourage women, in a divorce case, to return to work. This may be a straight forward strategy based on the reality that a female client looking for support will get less if they are working and able to contribute something themselves.  While female lawyers are often caught in this trap too, they are likely to be working mothers themselves and aware of the issues involved and therefore, better able to have a conversation about a return to work. They are more likely to offer direct encouragement. Male lawyers often find it hard to position themselves in such a way with female clients to have such a conversation without coming across as badgering. Unfortunately, the Judiciary is not clear on this matter and while one Judge might take a strong view and raise the issue in court, another will not raise it. 
I take a view that with few exceptions, age or sickness, being most of them, that a separated woman is often better off returning to work as a part of her recovery from the marital breakdown and to give her a sense of financial independence. That said, everyone needs to fully appreciate the logistical difficulties of such a return. Quite often retraining is necessary or a phased return depending on the type of job and ongoing family responsibilities. Equally, a woman who was in a high- powered job or a job with considerable status in her 20s and is now 40 is not going to return at the same level or indeed any level and that may be humiliating for her. Accordingly, she may wish to pursue another career or different kind of work. Sometimes, the experience of being a stay at home Mum may have fundamentally affected her approach to life, values etc. and she may wish to pitch herself differently in the work force.
All of the above difficulties are conundrums that need to be discussed. In short, they are conversation pieces. Nothing will be resolved satisfactorily by either side making the other feel bad about life choices that worked for them as a couple and are now unsustainable.  Equally nothing will be served by either of them being led by well-meaning family, friends or professional people into bitterness. The end result of bitterness in the legal world is money and money will never compensate for lost dreams and hopes even if that were allowed by our system, which it is not. Ireland has a no-fault divorce system. The language of compensation is not appropriate in family law. If a party gave up a career to raise children or took less promotional opportunities because of family commitments, there will be no compensation for such sacrifice in a family court. However, the court will take some account of it when dividing the assets but only to the extent that money is there. All that will happen in family court is a careful balancing of the finances of you as a couple and as you currently stand financially and a division accordingly.

However, a back story, a look forwarded to where the parties might wish to get to in their future separateness can lead to conversations. Conversations can let light in and show ways forward to mutual benefit. Not always, because sometimes there just isn’t enough money no matter which way you spin things, but the conversation can break down bitterness and barriers which in turn leads to better parenting or communication. It is not much of a conversation when a person is being cross-examined in court or where negotiation is being conducted with each party closeted in their own area so that the people actually talking are the representatives and not the parties. Mediation, collaboration in all their myriad forms are the way forward in all family law dilemmas.   

Tuesday, December 18, 2018

Happy Christmas :)

Conflict and Children

An article appeared in the Irish Examiner recently (29th November 2018) in the section entitled Life/Style, by Richard Hogan who is a practising psychotherapist, in which he wrote “recent research illuminates that separation doesn’t generally impact the child negatively but rather the damage is caused by how the parents deal with each other in that new post-separation landscape”. Wise words in my view and ones that echo sentiments expressed in this blog since its creation. I would urge everyone in this unfortunate circumstance to try and manage their marital breakdown in a civilised or amicable fashion. I am very much aware that it is a tall order, but the alternatives are so dreadful that rising to the occasion is the best advise that anyone can ever give you. I am not going to write now about the many and varied alternative ways in which you can resolve your disputes without going to Court as I have written extensively about them in this blog, in my articles and on the website and no doubt, I will cover them again in due course.  For the purposes of this article, I propose to address how conflict around children in the context of marital breakdown actually manifests and how it then impacts on the children. It is not only the obvious tug of war around residency and access that causes all the problems rather the difficulties are caused in more subtle ways and often without any conscious efforts on the part of the parents. 

   It seems from the research that the type of post-separation conflict that has been found to have the worst effect on children is that which occurs when parents use children to express their anger and hostility towards each other. This would seem kind of obvious to most parents even those that are blinded by anger and bitterness, but it is amazing how many parents involve their children in their conflicts and do not even appreciate the damage they are doing.  Often, they are even unaware that they are involving their children. 

       Asking your children to carry messages from one parent to the other is a big “No – No”. This is especially so, if the message is hostile which it generally is, either overtly or covertly. As a colleague of mine put it, no good is being expressed in a sentence beginning “Your Mother or Your Father”.  Tell your mother etc., or say to your mother, ask your mother, your mother should, and so on….are not phrases that usually bear glad tidings and love to all mankind. It is astonishing how many parents use their children to convey such missives. 

        Parents regularly contact me with reports of things their children have told them about the other parent.  There are circumstances in which this information is given by the child in answer to an innocent, non-intrusive question, but the opposite is equally true. Asking children intrusive questions about the other parent is not good. You are putting your children on the spot and they know it and resent you for it. They feel they are betraying the absent parent and also making you unhappy with the information they are giving. In short, they are in a no-win situation. Even if you don’t understand why you should not do this – don’t do it – as a good child psychologist will undoubtedly be given this information by the children and will rumble you. This will not play well if you find yourself in Court.

      Telling your children things about the breakup e.g., what led to it and who did what etc., but then asking them not to tell the other parent what you said, is not good. You should never put your children in a position where they have secrets from the other parent. Remember this is a stock in trade of child abusers. Do you really want to use similar tactics for any reason?         Confiding in your children inappropriately about adult matters is also a No-No.  It can be hard not to talk to your children and certainly the older ones when you find yourself living alone and a little isolated, but it has to be resisted as you are their parent, not their friend and you have to be the grown up. Inappropriate confidences can either serve to alienate a child from a parent or over-burden them with secrets and information they should not have and do not need. 

          Very often children will be afraid to say anything positive to one parent about the other or about spending time with the other parent, for fear of upsetting one parent or the other. A child in such a situation will feel constrained not to say anything for fear of upsetting one or the other. Sometimes this feeling can play out in ways that affect the access time of one of the parents. If a child cannot utter anything positive about the visits, the child might conclude that it might be easier not to go on visits or tell the upset parent that they do not want to go as a means to make the parent they primarily live with, happier. This happens frequently around holiday access when the prospect of the children being away for an extended period is more than the non-holiday parent can tolerate. This will result at no end of difficulties around passports, information about where the children will be at all times and an expressed wish to be able to contact them whenever wished. Apart from the passports, the other parent will not see anything wrong with any of this, which on the face of it looks quite innocent. It is, of course, a question of degree. Having information is a good thing as long as it is not over the top and being able to talk to the children while they are away seemingly innocent enough, unless it is two or three times per day. At this point, the holiday tends to become burdensome for all concerned and can be destroyed for the children. Parents will often tell me that a child does not want to go on access with the other parent and of course, that might be true but it can also be the case that the children perceive that the parent left behind is unhappy or particularly sad or even a little angry and if they are primarily resident with that parent, they may feel that it is better not to go on the visit.
         It is important to remember that children can hear and see as well if not better than many adults. In addition to this startling information, it is good to remember that children are bursting with curiosity and anything that seems secret or off limits will tease them to distraction. Lowering your voice is like an invitation to them to eavesdrop.  Every time you go on the phone to talk to friends or extended family, you need to be aware of the big ears around the place. A lot of parents do not even lower their voices and it is truly amazing how many parents can be heard shushing their children while they have one of these conversations so that the child even if not overcome with a need to eavesdrop, cannot but listen. A child’s view of a parent can be badly affected by overhearing such conversations and it should not happen. A child is entitled to an opportunity to get to know both their parents on their own terms and without having the lens coloured by one or other parent to a point where they are prevented from having that opportunity. Worst of all, of course, is when a parent directly badmouths the other parent to a child
               Children should feel safe when expressing their feelings to either of their parents at any time.  Sometimes children take on the responsibility for keeping the peace between the parents and hold themselves accountable for any fighting or unhappiness that breaks out.  Such children have poor outcomes post-divorce.

                 Another factor which can have a negative impact on children post-separation is the quality of parenting they receive from one or both parents. Imagine a parent who sheds tears every time he or she has access with the children and imagine how this impacts on the children just in terms of the actual visits but also the quality of parenting they are receiving.  Imagine a parent who gets upset every time the children have to leave the house and how that makes a child feel either about leaving the house or going home post visiting. Imagine a parent who talks to the children about the sexual behaviour of the other parent when the children have not even accepted the sexuality of their parents in any context and so on.  Parents who are obsessed with what the other parent is doing or who cannot cope with the strength of their negative emotions are not going to be quality parents. Part of any alternative dispute process is going to look at parenting in a more in-depth way than any court will do and will examine how future parenting will look in terms of communications how and when, decisions and plans that need to be made in the immediate or are coming up soon, and will try and empower the couple to deal with these matters. The experience of having sat together at formal meetings, and the experience of having business family meetings together for just you, the couple, can help enormously in giving you the courage to believe that you can deal with this. Accepting, however, that very often distracted and saddened parents can feel absent to their children, try as they might, I recommend counselling on an ongoing basis. It can help with relieving the emotional fallout when friends feel you should be getting on with it and it can empower you to take control. Counselling for children can also be very important as they need outlets to vent their frustration, sadness and anger too. Art therapy and play therapy can often be appropriate resources.

                 One of the greatest gamechangers arising out of a divorce or separation is the advent of a new relationship for one or both parents. When such a person becomes a step parent that can also give rise to a whole new ballgame. There is so much to think about here and I have already written an article on being a step-parent, however, some of the questions are 1) When should a child be introduced to another party or significant other? 2) When does a relationship qualify as steady/long-term/serious – 3 months, 6 months, 9 months or a year?  3) How and when do you tell the children?  4) What is the potential involvement of the long-term partner/stepparent in parental decisions or issues? We would routinely deal with these in all alternative dispute resolutions which can mean that such events do not jeopardize hard-fought peace and accord by taking people by surprise.  If parents handle these developments well, the children will generally be okay.


              These are not the only things that can affect children post-divorce and other examples are lack of finance for one or both parents as well as no contact with previously close extended family members. These matters can be managed if recognized in advance.  I have written before in this blog of the role of grandparents as bridge builders post-divorce and I would urge you to read that article. I find that where the parties adopt alternative dispute resolution as the method of resolving their dispute, the extended family no longer finds the need to take sides which ultimately benefits everybody. Lack of finances can often become most obvious around Christmas and birthdays and a little advance planning by the parents every year can often take care of this. Being able to talk and having to experience post-divorce of those conversations as you do in mediation, collaboration or managed negotiation can make co-parenting much easier going forward and ultimately, prevent your children from being caught up in parental conflict and promises better outcomes all round.

Tuesday, September 25, 2018

3rd Divorce Phase – Co-Parenting

One of the key aims of Alternative Dispute Resolution which I have touched on in the two previous phases is successful co-parenting.  Co-parenting is what happens post separation or post-divorce when parenting has to be organised between two separate homes and sometimes around several children with competing needs.
While parents may have overlooked key differences in parenting styles while there was still some love and affection, the attention focuses on these differences in an unwelcome way when the trust in a relationship has broken down.  Parents have to learn to trust again and that different parenting styles do not make one right and one wrong.  They must also recognize that children will sense their nervousness around the other parent or will have heard negative things about the other parent in the course of the two phases to date, and will often determine that they do not wish to go on access.  It is important for children’s health and well being that they continue a relationship with the absent parent.  Learning to live with and cope with all the competing feelings and interests and have clear boundaries is a serious learning curve for both parents.
I would always recommend parents to try and agree on things like custody and access to their children.  Even the terminology here is archaic and even has criminal overtones which are out of place in family situations.  If those matters are imposed from the top (Judge) down they can cause considerable hassle in their implementation.  Far better to agree.
Aside from the considerable difficulties involved in recommunicating in a sufficiently calm and efficient way to ensure property and smooth transfer from one parent to the other, there are the considerable difficulties involved in different styles as mentioned above in a climate of strained trust at best. For example, if Mum feels that Dad is just looking for access to get at her and that really the children are just being parked in front of a telly or allowed to play games, she may have difficulty allowing access.  For both parents the restraint needed not to prod children for information may be too much.  There is also the fact that children may be upset when leaving one or other parent as would be normal but the parents can read too much into it to suit themselves without even realising they are doing this.  These are only a few examples of the sorts of issues that arise very frequently post-hearing which can often become even further complicated by the arrival of a 3rd party into one or other of the parent’s lives.  At this particular juncture, this can have a very destabilising effect and even more so if no provisions have been made for this likely event.
Of course, money can also be a major issue in the ongoing successful post-separation parenting of children.  Very often Mum will perceive Dad as being able to spend more money on the children than she can afford.  She will say he is buying their affections.  Such a scenario can get played out over Christmas with gusto.  Both parents decided to have Santa so two sets of presents.  No parental co-operation around the Mum and Dad presents and so both spend more than they have so as not to be seen as having skimped. In addition, there is the skirmishing around who has the children on Christmas Day and for how long etc.  All of this can be avoided with proper planning and looking at it from the children’s perspective rather than each parent focusing only on what they will have.  Disagreements can arise over what clothes the children bring back and forth from one home to the other.  One party will accuse the other of not laundering the clothes prior to return, not doing homework with them should that need to be done, not feeding them so they go to bed later than normal, not feeding them properly, not sending them over to the other house with enough clothes so clothes have to buy etc etc.  Is it any wonder kids would find it difficult to move back and for them with all these tensions spilling over?
If you go to court, the court will not look at any of the above i.e., they will not anticipate the difficulties that may arise, they will simply order access as they feel appropriate based on the individual Judge’s habits in this area and the evidence presented.  However, in ADR, particularly collaboration, we look carefully at the issues that might arise such as a 3rd or 4th adult coming into the picture, Christmas presents, grandparents and extended family contact.  We try and ensure that both parents anticipate issues before they arise and have a plan in mind for dealing with this and furthermore, that we have very clear rules set down as to how to deal with something which arises that was not discussed.  We look at money for children very carefully and try and ensure that each parent can and will contact the other to discuss any envisaged expenditure for the child/children of a large nature.   This minimises problems over Christmas and birthdays.  We future plan educational expenditures so that by the time the parties get to an agreement they have envisaged most of the issues likely to arise going forward with their individual homes and their children.   Quite often, however, the parties will remain living in one house awaiting a sale, agreement or court order before driving on so the actual experience of co-parenting post-separation in a physical way will not arise until after the case has concluded or is near the end.  Of all the issues that can arise post separation settlement or orders, access issues can be the most difficult to sort, causing further heartache not to mention expense to both parents and children.
The experience of co-parenting is a steep learning curve for both parents.  Mum has quite often been the hands-on parent and Dad the one coming and going.  Dad may have to learn how to manage the children without the assistance of Mum and in an everyday way as opposed to outings.  Mum, on the other hand, may have to share in a way she did not in the course of the marriage at a time when her ability to trust is often at an all-time low.  She may also be resentful that Dad is suddenly asserting himself as Dad when in the course of the marriage he was off most of the time.  Both parents have to share their concerns in a managed safe way, both need to acknowledge the valued role that each of them plays in the children’s lives and both need to seek help from counselors and parenting groups if needs be.  The beauty of ADR is that it can assist with all of this while the legal process is ongoing because, of course, some ADR methods are legal processes also.