Relocation - is it really a good idea ?

Light relief in family court is somewhat unusual. Even by family law standards, however, child relocation cases tend to be particularly glum affairs. While it is fair to say that in most family law cases, no one wins, there is no doubt that this is most poignantly so in relocation cases. Post separation or divorce it is not uncommon for a spouse to decide to move away. In the majority of cases, this tends to be the female custodial parent. While such moves away can simply be a need to get away from a perceived failure they can also be proposed for good reasons. Unfortunately, there are nearly always very good reasons why the move should not be considered. In such situations fathers may perceive themselves as about to lose everything and mothers who have often spent years being the primary parent can often be impatient at having to explain themselves and their reasons for wanting to move. Frequently, a woman will want to move back to her family of origin for moral support, practical assistance or for cultural reasons. Sometimes the marriage was the only reason a woman was living in a particular location and without the marriage this woman can find herself extremely isolated. In other cases a woman may want to move because a move will afford her economic opportunities that she will not otherwise have. In circumstances where the courts seldom make direct spousal maintenance awards and where child support can stop and start, a woman may decide that economic stability begins and ends with her own efforts. Occasionally, and these cases are possibly the most difficult of all, a woman may want to relocate herself and her children because she has remarried or wishes to remarry. Of all the reasons for relocation this one tends to be the most embittering for the non-custodial, non moving parent. For the mothers who mostly have genuine reasons for wanting to move it can be very difficult to understand why they should have to explain themselves to a person who has perhaps hurt them greatly. For the fathers it can seem like they are about to lose everything.
When a marriage breaks down it is not unusual for the fact of the breakdown to serve as a wake up call to Dad. In the US such Dads are called “divorce activated dads” which is rather cruel but makes the point succinctly. Mums can often feel quite bitter about divorce activated dads, particularly when such Dads are asserting their rights. From a child’s point of view , however, it may be an unforeseen bonus to the divorce that suddenly Dad is on the scene. Whatever Dad’s motivation, his involvement with his children is to be devoutly encouraged for their sake. I have said it frequently and often – children’s self esteem will be seriously impaired if their relationship with a parent is compromised as a result of a separation or divorce. Therefore, no matter what the cost, it behoves parents to foster the love and respect of their children for each of them and to do nothing to impair that relationship. When we become parents, that is what we sign up to and it is a sacred trust. The only exception is where one or other parent is actively harming the children in an abusive way. So what happens to the non-custodial parent who slowly and painfully builds up a relationship with their children after separation and divorce? Parents who live together have the society of their children with very little effort. They interact with them seamlessly. Parents who are no longer in the house lose that casualness, that effortlessness and their relationship becomes somewhat forced, artificial. It takes time and effort on the part of that parent to build up those relationships again so as to ensure that they are still Dad and not some visiting Uncle. To do this, they need to establish new traditions with their children, get to know them in very different ways than when they lived with them and exercise understanding and patience in very testing circumstances. Picture then the vulnerability of this parent after all that effort and time who is then faced with the news that the custodial parent is relocating resulting in the inevitablility that their relationship with their children will change yet again and maybe seriously eroded. For Mum who continues to be the parent with primary responsibility and frequently borderline poverty, it can often seem a very lonely and isolating place.
Cases for relocation tend to be highly strategic in their presentation. The person seeking to establish the move as being the best option will present a glossy portfolio of pictures of the intended new residence and schools. Glowing accounts of extra curricula opportunities and brochures from fabulously well endowed schools including letters from perspective headmasters/headmistresses. In addition a strong case will be made to show how the staying parents’ rights will be barely affected because of proposals for block access. In contrast the staying parent will present detailed accounts accompanied by photos establishing the extent of their relationship with the departing children in poignant detail. Reports from the children’s schools will show how well they are doing in those schools. If a child has a special talent or interest which requires nurturing in a certain environment then much will be made of that. Relationships with friends and extended family will be emphasised. And while all this tugs at the heart strings, we need to cast a cold clinical eye on it. On close examination the custodial parent’s reasons for travelling may have little to do with the child/ren and sometimes the non-custodial parent may not have much of a real relationship with the child/children. A non-custodial parent who has not availed of an opportunity to see children when there were opportunities is in a poor position to argue. Equally, if a moving parent establishes a strong economic need to travel and the party arguing against the move has a poor track record of payment and the payments are small, they will have a difficult time of it before the court. As one West Cork Judge colourfully put it in a case of mine “A fellow would have better standing with the court if he was working and contributing financially”. Sometimes the children are of an age where the impact on parental relations is somewhat less because they can manage their own contact and travel. An analysis of the interests of all parties can sometimes allow us to decide with confidence whether or not the custodial parent should relocate or not. Bearing this in mind, it still remains the case, however, that many people have substantial reasons for relocating just as those objecting have substantial interests.
How is a Judge to decide such cases? Should there be legislation setting out the criteria by which the courts would determine these issues? Where should the burden of proof lie? In other words should the moving parent have to establish why the move is a good idea or should it be up to the parent objecting to the move to make their case? Is it desirable or even possible to have a coherent policy on this issue or should it be decided on a case by case basis? It seems fairly clear that except for the few cases where there is absolutely no good reason for moving, it is almost impossible for a Judge to get this one right. The test in Irish law is the best interests of the child/children. However, are a child’s interests served if a parent is forced to reside in a particular jurisdiction or lose custody of the child? How will an unhappy parent impact on a child? In the USA the trend has been to permit relocation based largely on the view that what is good for the parent is good for the child.* This assumption went largely unchallenged until a piece of research undertaken and published in 2003 1*. This research which was by no means conclusive and raised as many questions as it answered. The study, as reported in the media, appeared to establish that children whose parents moved away from the other parent, were significantly disadvantaged by the move.2* This in turn suggested that courts should give greater weight to the child’s separate interests in deciding such cases. But how do you focus in on a child’s interests as a determining factor? There is little guidance on this. Comprehensive research and empirical data is thin on the ground. There is the added complication that a court cannot order a parent to stay in a jurisdiction. And even if it could, would that be desirable? After all, the non custodial parent can relocate at any time with just as potentially devastating consequences. At best all a court can do is threaten to move custody if the parent relocates or in fact move custody if the parent relocates. This is to use the children as pawns in a judicial game, the game of “call the bluff”. In my view such games are not in the children’s best interests, whether it is parents manipulating their children to want to relocate or to want to stay or the court.
It remains a fact that most moves away are undertaken for economic reasons or for reasons of support. The best outcomes for children post separation and divorce are dependent on good working joint custody and access arrangements and being in reasonable financial circumstances.3* Parents who locate reasonably close to one another and who share the care and management of their children offer the best protection to one another against the threat of relocation. The more involved the non custodial parent (being the parent with whom the children are not primarily resident) is with the children the more likely he or she is to contribute to their support and education. To have effective parenting arrangements means little conflict. Parents ought to be aware that high levels of conflict have been associated with poorer physical health in adolescents. 4* In general the courts would be mistaken to assume that children will necessarily benefit from being moved away just as we cannot establish with any degree of conclusiveness that moves cause children substantial harm. So what should we do in this situation? As always we should put our children first and there is no doubt that growing in the society of both of their parents is the best outcome for children. Are such relationships fostered by taking court actions against one another or engaging in trench warfare against one another? Surely the answer must be obvious, that they are not. I can think of little more calculated to really “do for a relationship” or what is left of it than giving evidence against one another or subjecting one another to rigorous cross-examination. When a relationship breaks down there is naturally lack of trust and conflict. We know that conflict impacts seriously on the mental welfare of children and also their physical well being. We know that lack of trust will breed hostility and lack of cooperation. We know that when we are angry, our anger infects ourselves and our children and makes them and us unhappy. We need to take steps to build up the trust and minimise the conflict. A tall order! Yes it is, and it will require sacrifice and effort. It is hard to give up a grievance, just as it is hard to give up cigarettes, even knowing that both are bad for your health. However, there are people who can help. Lawyers who have trained collaboratively and in mediation and who will endeavour to work with you and your spouse towards transition and resolutions, collaborative coaches who will help you with parenting arrangements and work on communication skills and financial specialists who will give you sound non positional , family orientated economic advise. All these people working together offer you the best chance of achieving a new trust and minimizing conflict. This is your best guarantee of a successful outcome for your children and for you.
What if it still happens that even after all that collaboration, a parent still decides to relocate? Well that can happen even with the best will in the world. Families are not static. Is that a reason for running into court? Does it mean that the collaboration was unsuccessful.? Was there a complete breach of trust? Well it depends on the reasons for the relocation. Hearing these in a calm, managed environment, where both of you are held in such a way that you can actually hear one another, still offers the best hope for both of you to work through such a possible relocation and hold firm to the principles of trust and lack of conflict that are so important to the health of you and your family. If a parent is moving with the children and on top of that there is lack of trust and conflict, then the hope for a future productive relationship between the non moving parent and the children is minimal. This in turn has negative impact on the children’s health and wellbeing but also frequently on the family purse. Parents who do not see their children and have a limited relationship with them frequently stop paying towards their children’s education and support. So, maintaining the trust is, as always, key to this and going to court is one sure way to destroy trust.

*1. Fabricius,Braver & Ellman – 2003 Journal of Family Psychology. (Commonly referred to as the Braver study).
2. “Does Moving After Divorce Dmage Kids” Norval Glenn and David Blamkenhorn. Article raises some thought provoking points on the Braver Study.
3. Warshak
4. Mechanic & Hansell, 1989.

Its my party and I’ll cry if I want to: Experiencing Grief and Loss.

The pain of a relationship breakdown can be so intense that many of us imagine we are going crazy. Grief is painful. Few of us have real understanding of the grief process. Grief is a natural response to loss. Any loss can cause grief. Grief needs to be expressed and experienced. There is no right or wrong way of expressing or experiencing grief. Many of us coming to grief for the first time will expect more from ourselves, beat ourselves up because we are not dealing with this better. This sense that we should be doing better or coping better than we are, can in turn be fuelled by the remarks of well meaning , often equally impatient friends and relatives. How often do we hear “ pull yourself together”, “ you have to get on with it” and other such sentiments. These only contribute to our sense of misery and hopelessness. I remember a friend of mine some time ago criticising a relative of the deceased at a funeral because she was crying and saying that you would think she would keep it together for the sake of the deceased. I expect the deceased was beyond caring and as for others, their feelings of discomfort are for them to reflect upon. The truth is that grief can take many forms. Some of us will cry and some of us will not and it is okay either way as long as we keep in touch with ourselves and others, express the feelings and allow ourselves to experience what is happening to us. Repressed feelings will out and sometimes in very unhealthy ways. Crying does not mean we are weak, it is just a way of coping. I have found in my practice that when people gain an insight into what grief is like, they manage a lot better. Knowing what to expect is half the battle.
In the 1960s, Dr Kubler Ross wrote a ground breaking book about the stages of grief. Like all great insights, it has been carried too far and taken too literally by many. Her 5 stages were:
Denial – This is not really happening.
Anger – Why me, what did I ever do to deserve this?
Bargaining – Come back to me and I will........
Depression – I am too sad to do anything
Acceptance – I am ok with this now.
The use of the term “stages” has confused people into thinking that we can travel through this process like a well worn path from beginning to end. They ask themselves – what stage am I at now and if the answer is not what they expect, they retreat into thinking there is something wrong with them. However, grief does not tend to be experienced in stages, rather it is experienced like waves and like waves it can move back and forth as it gather momentum and then ebbs. So, sometimes we will seem to be pulling out of it and then find ourselves right back at the beginning again. It is ok and it is perfectly normal for this to happen. The important thing is to know that it can happen and that while you can move back and forth through the various stages, the peaks and troughs will get less intense as time passes. At the end of her life, Dr Kubler Ross talking about the five stages said “They were never meant to help tuck messy emotions into neat packages. They are responses to loss that many people have, but there is not a typical response to loss, as there is no typical loss. Our grieving is as individual as our lives”. So while there are elements in all grief that are recognizable – how we deal with those elements is as individual as we are.
Not everyone who grieves will experience denial or their experience of it may be very short indeed. Some will experience this stage more as a kind of numbness rather than an active denial. They will feel like they are acting in a movie of their life rather than actually experiencing it. Things will take on a dream like quality. There can be a nagging sense of unreality, an experience of emotional distance from those around us. For those who do experience denial it can often manifest in refusal to change things in the home because of an often unexpressed belief that the lost one would be upset if you were to do so and correspondingly, the unexpressed belief that he or she will return. The anger can be frightening and overwhelming and can seem irrational for example, what is the point of being angry with someone for dying but people are all the time and again it is important to realise that this is normal. In the midst of this maelstrom of emotions, there is very often guilt. Guilt at things I should have done, things I said that I should not have, things I did not say and so on. Most of us raised in Catholic households no matter where we stand now, will recognize bargaining! It can be exceedingly disconcerting for the confirmed atheist to find herself in full-scale bargaining with the Almighty in the midst of grief. Bargaining can take many forms but usually consists of promising to do something in exchange for the return of that which is lost. Sometimes we can bargain with the departing partner, or sometimes with the Almighty, it depends in each case on the loss involved. The Depression stage is experienced as an energy sapping sadness, a feeling of despair and hopelessness which crashes over us in waves and it is extremely debilitating. This is the time that no matter what stimulus came along, we would not feel like stirring ourselves. It is normal to feel this. Don’t try and hurry it along. Don’t fight it. Just experience it. We need to let it happen. Finally there is the Acceptance or Resolution when we don’t stop feeling but we are simply at peace, out the other end so to speak.
We often think of grief as an emotional process but many of us who have experienced profound grief have felt it as physical at times. Grief can actually manifest as a physical pain in the form of stomach aches, sleeplessness, choking feeling, shortness of breath, panic attack, loss of energy, weight gain or weight loss. Some of these symptoms can ambush us at the most inconvenient time, when we are driving, at work meetings and so forth. Sometimes not realising what is wrong with us, we will rush to the doctor to medicate us out of our pain. No medication will take away this pain. It will only suspend it. In order to heal you have to deal with the pain, not by repressing it rather by letting it be, acknowledging it. If you avoid the feelings then you will probably prolong the process. Unresolved grief can lead to depression, anxiety, substance abuse and health problems or all of these. The best advice is:
Face your feelings
Express your feelings – take support wherever you find it.
Look after your health – exercise and diet
Don’t let anyone tell you how to feel
Plan ahead for “triggers”.
“Triggers” may be birthdays, anniversaries, family occasions. You cannot plan for the things that will suddenly overcome you , like a smell, a forgotten photo in a book, etc. It is normal even after much recovery for significant dates, holidays or other reminders to trigger feelings related to the loss. Remember there is an upside to all this, by experiencing deep emotion and accepting it, you will grow in warmth, depth, understanding and wisdom.

What will we tell the children?

Over the years I have noticed that a significant number of parents resist strongly any attempt to discuss the children with me or indeed with anyone else. Any discussion is vigorously blocked. For parents, I suspect that one of the most upsetting things about separation/divorce is the fear that children will be so fundamentally damaged that they will fail to nurture their talents or that their innocence will be compromised or taken away, their memories of childhood will be tarnished, they will become dysfunctional members of society or they will form unhealthy adult relationships. Over the years, I have found that this fear for many parents is so overwhelming they cannot even bring themselves to articulate it and so they block it out by refusing the discussion altogether. Is it inevitable that children will be damaged by separation and divorce? The good news is that it is not inevitable. Of course, children will have a problem with the separation of their parents and they will suffer. However, long term suffering and damage is something different altogether. All the latest research would say that children can come through separation and divorce in good mental and physical shape provided they are not caught up in or witnesses to a prolonged, bruising confrontation between the parents.
From the time that the decision is made to separate, the focus should be on childcare and management. Traditionally, we lawyers have tended to take the view that really the only issues that concern us are finances and property. Indeed, when I was doing my training, we were encouraged to think that way. We were told categorically that we were not counsellors and that we should only advise on the law and furthermore, that we should stay objective, professional and detached at all times. This is the way I was trained and I have questioned it for years. If we let in the emotions we might get swamped by them compromising not only our detachment but also our own health. It is true, that can and does happen but the answer is not to lose our ability to connect with the whole person, the answer is to train us in techniques that allow us to manage those emotions and to screen ourselves. Professionalism, objectivity and detachment are fine qualities in their place but not at the expense of humanity, emotional intelligence and common decency. Good family Lawyers should be able to balance all of the above. As I have said in many different articles, people come to us with emotional issues, financial issues, property issues, child issues and so on. In the midst of their trauma, we cannot expect them to compartmentalise themselves when they are speaking with us. At the very least, we need to recognize that our clients will be adjusting to relationship changes on many different levels, changes in the primary relationship between the couple, changes in extended family relationships, changes between parent and child and changes in the parenting relationship itself, social and work relationship changes, changed self perception as well as financial and property changes. Indeed, the financial and property changes may well be the easiest of the bunch. As lawyers, we cannot ignore any of the changes and serve our clients well. Since we are the first port of call for many families in trouble, at the very least we need to be up to date with professional and voluntary services in our area. However, handing out a list does not, in my view, fulfil this obligation to our clients. I am of the view that it behoves us to be able to stand over the names we give out to people and not just their qualifications. I always ask my clients for feedback on counsellors and therapists that I have referred them to or with whom they have attended without my knowledge. I am always on the lookout for new names, new skills and new services. I meet with and speak to everyone on my list. However, even that, in my view, is not enough. We, as lawyers, also need to be able to offer clients practical advice and information on all the things that concern them including their children. To do so, we need to be sensitive to the issues that clients are likely to encounter on their separation journey.
It is remarkable that while the vast majority of our family law clients will prioritise the health and well being of their children as their chief concern and primary focus, we lawyers will frequently ignore issues surrounding the children that we know exists, simply because the parents assure us that the children are not manifesting any “problems”. Just because a child is not misbehaving in school or their school work is not deteriorating, does not mean that there are no problems. Since we know that children will suffer to some degree when their parents separate then running away from that fact will not benefit anyone.
At the point of separation, clients are dealing with so much personal fallout that they may simply not want to take on board their children’s suffering as well. They are overcome and vulnerable. As lawyers, we need to offer reassurance and guidance and that means treating the client as a whole person, seeing the family relationships in context, being up to date with the latest research, having a basic grasp of the stages of separation and divorce ourselves and having a grasp of child issues in separation and divorce not to mention the ever handy list of referrals.
There are many issues that are likely to arise but one of them is “Should we speak to the children and if so when is the right time? Who should speak with them and what should they say?” This is one that comes up all the time. Even if a parent does not raise this issue, we know it exists and we know that it needs to be handled with sensitivity and so we should raise it even if the client does not. Many fine articles are written on this subject but we can certainly offer some guidelines. For example, where possible, both parents should speak to the children together having decided what they will say before hand, keeping it brief, child friendly and with no blame. Reassuring the children that the separation has nothing to do with them and that they cannot fix it is also extremely important as the research would indicate that frequently children will blame themselves for the marital or relationship breakdown. It is very important for both parents to reassure the children of their love for them and to distinguish for them the different kinds of love that exist and that the love of a parent for a child does not cease and will not cease. The children should be reassured that both of you will continue as parents and that they will continue to be loved by and to love both of you. Research shows that the self esteem of the children is bound up with their relationship with each of the parents. While emphasising them things that will continue for the children such as their relationship with extended family and friends, it is important to inform them of what will change. Where they will be living and with whom is very important information for them to have and they should not be asked to make any decisions in this regard. These are parental decisions and all the research shows that children do not want to be asked to decide these things. It is too much of a burden to place on them. Listening to them and being emotionally available to them is not the same thing as asking them to make decisions. Children need to be given all the details on where the moving parent will reside including contact details and reassurance that they can get in touch as often as they need to or if not, when they can get in touch. Sometimes it is not possible for a parent for work reasons to be available all the time to their children but setting aside a slot could be very reassuring to a child in this situation. A good parenting plan is very important for the children. Children like routines and they like to know what is happening and when. Research shows that a well thought out schedule placed where children can see whenever they need to, works best for them. Sometimes a parent will be moving away or will choose to minimize future ongoing involvement with the children. Difficult as this is, it is important to be honest with the children without being brutal and again without blaming. Finally the school needs to be informed without breaching the children’s need for privacy, about the situation so that they can keep an eye on the children. They also need to be given up to date addresses and contact numbers as well as being informed about collection and delivery from school.
Lawyers should be able to talk through these issues with their clients and offer some practical assistance and guidance as well as being able to refer problems outside their competency to good professionals who can assist. They should also be able to direct clients to articles books and research on parenting post separation. I know that many people, lawyers included, will see this as outside of the remit of lawyers. Recently I suggested to a colleague of mine also a family law specialist that we should advice on how to handle this conversation and she responded that “We are not therapists”. That is correct but we are family law specialists and if we are to call ourselves that then we have to offer more than just a bread and butter service – silver service at least!!

All I want for Christmas ..

More than any other time of the year, Christmas tends to pose the greatest challenge for separated and divorced parents. The biggest issue is generally – where will the children spend Christmas, followed by – who has them on Christmas eve, followed by – how will we divide up present buying and santa given that we are hardly speaking or not speaking at all, followed by – who has them for New Years. All of these issues can be minefields in the hands of warring parents. Over the years I have presided over many a Christmas access battle, the odd festive kidnapping and one memorable Christmas, my brother was on one phone to a Father for several hours on Christmas day and I was on another line to the Mother as they commenced their domestic journey toward separation– that must have been a fun Christmas for the children! I remember my own Mother being absolutely furious at the interruptions as the calls went on and on throughout the day.
For many of us, Christmas brings us back into our own childhoods, to a more innocent time perhaps and a time of anticipation mixed with comfort and security. We tell ourselves that we want to recreate that for our children and, of course, that may be true but buried underneath all that may be our own need to feel those feelings again. Apart from our own feelings, there is the potent commercial sell of Christmas. Those of us who do not have children may feel inadequate and incomplete during this season as well as those of us who are unmarried, homeless, old, widowed etc. So it is as well to understand that we are not alone. When we combine those potent feelings with a power struggle and the loss of focus that the emotional flooding of divorce or separation brings on, it is not too surprising that Christmas can become a major battleground each year. So what can we do to prevent this happening?
The first thing is to have a plan for Christmas. Don’t leave things to chance and don’t assume anything. Make sure that you have discussed things and you have a clear strategy for the Christmas period. The first thing to remember when you make your plan is that Christmas is about the children and not the adults. Therefore, the focus is not about my rights or your rights but about how we make this Christmas a good one for the children and not just this Christmas but every Christmas. For the children of separated parents, this is a difficult time as well. Since we are the adults, it is our job to make it easier on them and not the other way around. The every second Christmas routine may work well for parents but it is unlikely to find favour with the children. Children are creatures of habit and they like things to be exactly as they would expect them to be each Christmas with a little room for originality but not much. Therefore, as parents, we may have to accept that divvying up Christmas day on a turn and turn about basis may feel “fair” to us adults but may not be at all fair to the children. We need to look at these things with a fresh mind.
So maybe you won’t get to spend Christmas with your children. Realise in good time that this will be very hard and rise to the challenge. Unless you absolutely cherish being alone, plan not to be alone. One suggestion I came across was getting a few people together in the same situation as yourself and organising a dinner party. Sad as that is, it is not the end of the world, provided you do not sit at home moping all day. If you sit at home all day getting upset and morose, your children are just going to feel really bad and so are you. However, if they think you are ok, then they will be ok. Remember that your children will find Christmas without a parent challenging as well. Try and ensure that each parent allows them the time to reflect on this by talking openly about it. If you are the designated house for Christmas then include the absent parent by plotting with the children on a suitable present and taking care and time to wrap that and ensuring phone calls are made on the day. For the absent parent, why not make Christmas Eve the important day in your house if you can’t have Christmas Day? After all there are many countries where it is far more important than Christmas Day in any event. The children will be delighted to have a celebration wherever and whenever that celebration occurs and to build traditions around that. And if you don’t want to turn up like a lost soul at your family of origin, though I would say they would be delighted, then volunteer to do something on Christmas Day or make a plan for it – for example, take part in the Christmas swim and the conviviality around that and spend the rest of the day basking in your accomplishment and recovering. Whatever it is , the key is to have a plan.
It is important that while children enjoy and celebrate Christmas that parenting quality does not diminish to the extent that outrageous sums of money are spent and there is unnecessary doubling up on gifts. Where possible, as I have said before, parent on the “what if” basis ie what if we had not separated? If you and your ex had not separated , you would watch your spending and you would each contribute to the costs. Try, where possible, and do the same when separated. Sharing gift ideas and information about what each of you have planned for Christmas is both prudent and mature.
Some separated parents will manage to get together for a family meal on Christmas Day and that is truly wonderful if it can happen and happen with good grace. Obviously, it is not wonderful if it is an excuse for sniping and bickering or for other family members to have a go at the ex. Other people will divide up the day. Whether or not that is a good idea depends on how it impacts on the children. Whatever solution you and your fellow parent consider, has to be one that the children will benefit from and that is not primarily designed to make both of your feel that you have got your due. For many children, leaving their nice warm house and new toys to go off somewhere with the visiting parent on Christmas Day is not welcome. Rather than dragging them out, perhaps a fresh think might be required. Look at the holidays as they occur throughout the year and ask each other which parent tends to be more involved with the children on that particular holiday. For example, some Dads get very invested in Halloween and love the whole celebration whereas Mum may see it as an inconvenience or vice versa. Some Mums are totally devoted to Christmas and have been collecting Christmas decorations and memorabilia for years, whereas Dad can take it or leave it and even at the best of times was a 4 o’clock shopper on Christmas Eve. Some people adore New Years and others try and sleep it away. Looking at all these holidays in an honest way can quite often help us to divvy them up more realistically, ensuring maximum enjoyment for the children.
Sometimes you won’t be able to agree on how to divide the holidays and when that happens, you just have to designate. Decide which parent will have that holiday. Don’t just split them up or do a turn and turn about, because that seems like the best compromise. Be creative and look at the bigger picture. Designating specific holidays to each of you allows for you to build up happy traditions in each of your homes. Many parents will suffer from extra guilt because they will feel that their failure has brought this extra suffering on their children. Guilt is such a waste of time and serves no one. When you are happy, your child will be happy.

Difficult Conversations

Your body tells you when a conversation will be difficult. It is the tight feeling in your stomach, the slight headache that you have had all day and that jitteriness that you have been experiencing. These senses all put us on notice of a difficult conversation which has to be had but which we do not want to have. When we get those signals from our body we need to pay attention and think about what might be going on and how we are going to deal with it. The more we are in dread or feeling overwhelmed by what lies ahead the more we need to pay attention to ourselves. It could be that the imminent conversation is hitting a sore spot in our own psyche and that is causing us to be in dread rather than anything inherent in the conversation necessarily or, of course, it could be that the conversation itself will be difficult of its very nature.
The other day a friend approached me looking for help with a forthcoming “difficult conversation”. It is a conversation that many couples may need to have. My friend is divorced and in another relationship and she and her partner have different parenting styles. Recently Dad , who was absent from the scene, returned, causing my friend’s partner to become very angry and frustrated. The child who is in fear of her Dad disappearing again is now wondering if she should go and live with Dad so as to anchor him down. Partner got exceedingly angry at this suggestion and said some nasty things about the Dad in front of the child. My friend needs to have a “difficult conversation”.
How might she approach this conversation? On analysis it becomes clear that the partner has an authoritarian style of parenting. This would mirror his experience of parenting growing up and he has little experience of his own other than what he is now acquiring. My friend’s style is more authoritative or democratic. Many parents have different styles of parenting and it is not the end of the world but it does need to be recognized when it occurs. An authoritarian style sees discipline as exceedingly important and the parental word is law. An authoritative style takes account of the child’s wishes and tries to establish dialogue. It is important not to confuse an authoritative style with a permissive style. In the permissive style there is very little discipline and the demarcation lines between parent and child are blurred. That is not the case in authoritative. An authoritative parent is very clear that they are the parent but they are prepared to consult and look for consensus in a way that the authoritarian parent is not.
Once we have established where the tension lies and then looked at the particular problem that has arisen, we can look at how we might have this conversation. First of all, my friend need to remember that her partner was prepared to be a father to her daughter when her real father was not around and as such he played a vital role in helping to restore the child’s self esteem. She also needs to walk a mile in his shoes and understand why he might be feeling hurt and angry when he hears that the child now thinks she should live with her Dad. Then she needs to reflect on what happens to us when we are overwhelmed by emotions. We get flooded. The frontal lobe of our brains shuts down and we react in one of two ways, fight or flight. Literally we can attack or run away. A rational response is not possible for us when we are in that state. It is what a colleague of mine calls the primordial soup and when we are in it, we are not rational beings. A person in this position may use very intemperate language. Clearly, my friend’s partner was flooded and used intemperate language. It is helpful to understand that nature of that response so that my friend can then approach her partner from a compassionate and understanding perspective. This approach will improve the possibilities of having a successful conversation.
Should my friend try and change his style of parenting and move him to her way of thinking? She may have issues with his parenting style but it is a fact that many children grow up successfully in houses where the parents had very different approaches to parenting. What she needs to ensure is that he does not make negative comments about her Father to the child or in front of her. When my friend spoke to me about this she said that if he did not stop this behaviour then she would have to ask him to move out as she could not allow her daughter to be damaged. I was pretty sure if she communicated this to her partner the conversation would not go well. Men, in my experience, do not respond well to ultimata and women tend to be overly fond of them. Apart, however, from gender differences, people as a rule will understand requests as demands if they hear themselves being blamed by the language being used or if they suspect that if they do not comply, they will be punished. Sometimes you do all of the above and the other party still says that they think they were in the right and they are not sure they want to or can comply with what you are requesting. What do you do then? Well what you don’t want to do is challenge their failure to comply with your request because if you do, then they will quite rightly perceive that you were, in fact, making a demand and not a request. So a simple statement like, “Ok, I will leave it with you and perhaps we might talk about it again later in the week when we both have had time to digest this conversation” should suffice or if you are feeling energetic you might go right back to understanding and empathy again. Marshall Rosenberg in his book “Non Violent Communication” says that “Human beings, when hearing any kind of demand, tend to resist because it threatens our autonomy-our strong need for choice”. We all need to reflect very deeply on this statement. If you have conversations with your children which consist of demands and I know I do that myself particularly when I am stressed or in a hurry, their lack of cooperation and useful response may be explained by the fact that instinctively they feel their autonomy is being threatened. And, taking that a step further, if that is an instinctive reaction, then how much time and energy have we wasted and continue to waste on totally useless and frustrating communication? Rosenberg goes even further with this when he says that even when we talk to ourselves in the language of “should” such as “I should have known better” we are already inside ourselves reacting to the “internal tyranny” of the “should”.
In any event, I am not sure that we can ever change anyone else. The only person we can really change is ourselves but I do think if we make an honest attempt to understand another’s point of view then we can reach understandings and accommodations if not outright changes. Once she has truly listened to how he might feel and empathised with it then she might tell him that her daughter’s self esteem is tied up with her relationship with her Father and that when he attacks her Father, he attacks her. She might explain to him that even though her Dad might only spend a short time with his daughter every weekend, that time was worth as much to her daughter as a whole week spent with her Mum no matter how unfair that might seem. And finally she might look to build a fail safe device so that neither of them would fall into the trap of losing their temper around the child again and saying things that they would regret. Approached like this it is likely that her partner, while he might not initially agree, would start to hear her. A fail safe device might be something like “this is a little overwhelming” as a reminder that we are moving into the danger zone. If you can both agree something like that as an alert to each other it is a very useful safety valve for both of you both in parenting and even between each other when one of you may be pushing the other too hard without necessarily realizing or appreciating the effect you are having.
The most important thing to remember when you have to have a difficult conversation is that no matter how well you prepare sometimes things can take an awkward turn and you might find yourself locked into a row without even realising how you got there. So, give yourself a break and try again. It is not a race. These things take time and ,occasionally, you have to take the scenic route a few times before you arrive. When I was learning how to mediate it took me a while to realise that I did not necessarily have to progress nicely along a path ticking off each marker as I passed. It was very nice when a mediation went that way but the markers were essentially teaching and memory devices. You needed to know them and try and make sure you included them in the process as a way of marking progress but conversations are not generally conducted in a linear progression and sometimes the person telling their story needs to tell it more than once so that you sometimes find yourself going around in a circle. This is all perfectly normal. And so it is with difficult conversations, sometimes they won’t go exactly to plan but as long as you and your partner are listening to one another and appreciative of each other, you almost can’t go wrong.

Cost of Living

An impending sense of doom lies over us here like a pall as we await the budget. When we went into this recession, we were reasonably confident that we would be out of it by now or thought we would, now we are getting the truly uncomfortable sense that we are in this for the long haul. I have essentially stopped listening to the radio or reading the daily newspapers since I have to simply keep going no matter what. This is very hard for me since my favourite medium is the radio and I would have listened to radio constantly. Sitting with the Newspapers on Saturday and Sunday one of life’s great pleasure, alas now gone. Where is the point in suffering from a mixture of outrage at our politicians, bankers and developers combined with despair at our future and that of our children? Where can I go with the rage, who can I beat up and what will be the point? Everyone that we trusted was on the take or the make in some form or another. Short of a whole new set of people emerging to inject some hope into the future, people of proven standards and integrity, I just drown in a wave of despondency. That we have been ripped off on a wholesale basis I have no doubt and it continues and that there is corruption at every level seems to me to be just a fact but what exactly can I do about it? If I thought my rage and despair would do some good, I would engage actively. So instead of feeling overwhelmed , I choose to exercise optimism and hope in my own personal life. This is a very conscious decision. I use those skills I have written about in my blog to try and maintain an even keel emotionally (I don’t always succeed) and screen out the information that does me no good whatsoever. I am not running away from reality, simply choosing my own reality in so far as that is possible. Of course, I, like everyone else, have to be careful with my finances now and running the business is a white knuckle ride at times. My pension is gone belly up, any investments I have are at rock bottom and I might as well have been flinging the money under the bed. I couldn’t give away my house as nothing is selling and I have resigned myself to the fact that I will probably work till I drop and that is assuming that I can work as the insurance hikes are making it increasingly difficult. I do not mention this because I think that I am suffering more than others, far from it, I know that on the scale of things I am doing ok. I am working, I have a place to live and so far I can pay the bills, just about!
There are a lot of people out there worried about day to day finances and coping with unhappy marriages and relationships at the same time. Certainly, where there is already strain, a poor financial situation can completely unbalance things. There is no doubt that legal costs are a big issue if you are separating. Lawyers in common with everyone else have reduced their costs but going to court is still a very expensive option for any family in these straightened times. The Legal Aid Service is there to help out. It is worth noting that the Legal Aid Service will charge a fee for their service should you get money in your settlement or court order. Many people are not aware of this. Quite often the fees charged by the Legal Aid do not differ a whole lot from that charged by many private solicitors. Most family lawyers charge a first consultation fee particularly in the cities. This is because a first consultation can be very time consuming and difficult both for the professional and the client. Clients very often have little or no idea what to expect and it can take some time to focus and gather oneself. Quite often people are too upset to convey information easily at this meeting or are in great need of reassurance. All of which takes time and skill. Because many people come to lawyers for advise when they are not sure what they are doing or may want to do, many will not necessarily come back having taken a great deal of time and so we find that we have to charge for first consultations. In Cork the majority of family law specialists will charge between €150 and €250 plus vat for that consultation which can often last up to two hours.
Settling your affairs with your spouse/partner is by far and away the most cost effective and logical way to resolve a family dispute. Whether you settle by way of agreement conducted between firms of solicitors, private mediation, collaborative family law or in the courthouse, it is still less expensive financially and emotionally than having a full hearing in front of a judge. The least expensive option is a mediated settlement followed by agreement conducted between firms of solicitors and collaborative family law which on average are pretty much on a par financially though not in any other respect followed by settlement in the courthouse and last and most expensive full hearing. A full blown hearing in the Circuit Court can cost anywhere between €8K and €20K plus VAT plus outlays and any other expenses involved such as valuers, accountants etc. Some cases are more time consuming than others, they involve more correspondence, more phone calls, more consultations, briefs to various experts, interim trips to court leading up to the full hearing which all mounts up costs wise. Again remember that from a lawyer’s perspective, time is money and solicitors are looking at your case from a costs point of view in terms of billable hours. Court cases take a long time to gestate and come to term. This impacts on costs and can be very wearying for the person on the other end. Solicitors start to speak an incomprehensible language about drafting documents, briefing counsel, issuing proceedings, service of proceedings, filing, expediting, Motions, Discovery, Affidavits, Registrar’s courts, rules of court, precedents, settlement talks and hearings. None of this makes any sense to you and on top of that it is all taking an unending amount of time to come to a conclusion. You just want it finished and you don’t want to hear all this mumbo jumbo!! Then after what seems to you like an absolute hellish eternity, they slap you with a large bill for doing stuff most of which you did not understand in the first place and have no idea why it was necessary in any event. Welcome to the world of the adversarial court system! By contrast the world of Alternative Dispute Resolution (ADR) works to your pace, is at pains to speak a language you understand, makes itself as user friendly as possible and all the work being done is conducted in your presence or with your knowledge and you know exactly what you are paying for and how much you will be paying.
Negotiated settlements between solicitors leading to either a Separation Agreement or a court ruling by consent, while less expensive than a full blown hearing and preferable to going to court, are still expensive ,especially, emotionally expensive. The type of negotiation involved in solicitor’s negotiation is distributive bargaining. I wrote about this in my last blog and website posting. It involves looking for the biggest slice of the pie for one’s client and since there is only one pie one person has to take less than the other. This type of bargaining also looks at the pie in a very one dimensional way. It does not ask questions to determine the parties’ real needs so as to see how value might be created. Also distributive bargaining frequently uses gamesmanship, bullying, hiding information and other such tactics to succeed. All of which can leave a bitter taste in the mouth. The correspondence between the solicitors leading up to the court case is often a classic example of this where each party sets out their stall in an attempt to undermine or diminish the other’s confidence or simply to bully them into submission. Accordingly, by the time you arrive at a settlement a lot of unnecessary damage has been done. A Separation Agreement conducted through solicitors negotiating in the traditional way can cost anywhere between €3,500 plus vat and €8,000 plus vat again depending on the amount of correspondence, telephone calls and consultations involved with the client, settlement meetings (if any) and drafts and redrafts of the agreement. A privately mediated agreement will cost around €2000 plus vat per head on average depending on whether you opt for co-mediation, which is what I like to practice, or the more traditional one mediator model which would be somewhat less. A collaborative family law case depending on whether it is full team or just lawyers and clients, will average between €6K and €12K per head. For that you get a tailored custom made solution with a range of experts at your disposal which takes account of the family needs and not just individual members and which is future focussed and not just dealing in the now.
When looking at legal costs it is also worth noting that solicitors do not conduct their work over a few days, it can take months and sometimes years to bring cases to a conclusion. People ask us all the time why our costs are so high and the answer is very straightforward, our overheads are huge. At the moment I am paying professional indemnity insurance and an annual practising certificate fee of around 25% of my turnover. In addition, I pay all the usual business expenses, rent for my office, accountancy fees, office equipment and running costs, business loan and one administrative staff member, public liability etc.

Many solicitors will look for money on account before taking on a court case and that is not at all unusual. That money is offset against your fees at the end of your case and is not additional to the fee charged overall. It is used for office running costs in respect of bills being run up managing your case and while your case is ongoing but also to ensure payment of people retained on your behalf ie, auctioneers, doctors reports, psychologists, accountants, barristers etc. A solicitor retains these people to act on your behalf and is, therefore, liable for their fees. If, however, there is some very good reason why you cannot place any monies on account and you can give reasonable assurance of payment at the outcome of the case, most solicitors will consider your position. Another option which is finding favour now is payment as you go. I tend to favour this as do my clients. It does involve a bit more office administration but it is worth it to keep the clients happy. Generally, clients pay me every 3 or so months bringing themselves up to date so as to avoid having to put a larger sum of money on account and also having a big bill at the end of the case. Talk to your lawyer about costs, be up front and you may be surprised and how well you are understood and what he or she will be prepared to do for you. If your lawyer does not discuss costs with you or fobs you off whenever the subject is raised with platitudes, then alarm bells should go off.

I think many of us are living in some kind of suspension waiting for this to end but we shouldn’t put our lives on hold. Who knows how things will turn out. We need to move on with our lives.

Magic of Negotiation

When I was a small child aged between 6 and 12, my favourite word was “negotiation”. I loved that word with a passion. It was not the meaning that enthralled me, rather the sound. I thrilled to the way you could break it down and roll it around in your mouth. Occasionally, I would lose it briefly and would ask my Father to remind me again of my favourite word. Like the great dad he was and is, he would remember that for me and give it back to me immediately, whereupon I would savour it and hug it to me like a person recovering buried treasure. Sometimes, I would ask the meaning of the word but I would quickly forget the meaning. In time, I also lost the word’s special magic for me. Is it not mysterious then that I should have become a solicitor and even more than that a collaborative lawyer and mediator?
Now the magic is in the meaning of the word and what it signifies. Whenever we hear the word “negotiation” in the context of a war zone or a crisis, we breathe a sigh of relief. Time has been bought, we are back from the brink and the hope of peace beckons. Yet, when we consider marital breakdown, so many of us think only in terms of court, rather than negotiation. We need to reflect on that. Our lives would be unimaginable without negotiation. It informs our every day and all our relationships, business, politics, state and world affairs. There is no part of life on this planet which is not affected by negotiation. It is, therefore, extremely important that we understand the true meaning of this word, various styles of negotiations as well as the many forms it takes.
Negotiation is a dialogue intended to resolve disputes, a bargaining tool to gain advantage, a mechanism to produce an agreement, a blueprint for action or a process to craft outcomes. It can be all of the above or just some of the above. When we think about negotiation most of us think in terms of two opposite sides jockeying for advantage. As a lawyer, I would generally think of negotiation in terms of one side looking for a bigger slice of the pie over the other i.e., hard line bargaining. We refer to that as distributive or adversarial bargaining and it is generally the way that solicitors and barristers negotiate. Like everything, it has its place and is a very useful tool at times but that is all it is, a tool. Like most tools, it is ill suited to certain circumstances, people and situations. Many of us understand negotiation only in terms of distributive bargaining and are not aware of any other method of negotiation. There are many different ways and styles of negotiation. Another approach to that of distributive bargaining with which we are probably familiar, might be to hammer out an arrangement in the best interests of the parties i.e. take a more holistic approach and look on agreements from the point of view of creating optimum gain rather than maximum gain.
In many countries ordinary people are master negotiators though they may have little theory informing their practice. Generally, they are masters of distributive bargaining. I am thinking, for example, of many Arabic , Indian and Asian cultures where bargaining is a way of life. We are all pretty familiar with this way of bargaining and most of us tend to try and conduct our relationships in a distributive bargaining way. We may employ various strategies to that end but essentially we are jockeying for advantage either in our employment or at home. Distributive or adversarial bargaining is generally ill-suited as a resolution tool for personal relationships. Perhaps it is more than time that we import a more creative theory of negotiation into our everyday lives especially when dealing with relationships. How might we do this?
We might start by looking at problems as opportunities i.e., opportunities to create. We might, accordingly, agree to only accept creative outcomes for any problem, situation, circumstance or crisis. To do that we must exercise understanding. We must spend time understanding the nature of the problem in all its myriad detail and we must take time to understand ourselves as we approach this problem. What emotional baggage are we bringing to this, how is our personality informing this situation? Emotion enters into the negotiation process in a number of ways. For example, whether or not we like the person with whom we are in dialogue, what baggage we are bringing into the discussion on a particular day, for example, a stressful family or business interaction prior to the negotiation will affect the way we conduct the negotiation. Unintentional emotional triggers arising during the negotiation will also impact severely on us and unless we have a degree of self awareness such triggers will adversely affect the discussions and we will be none the wiser as to what exactly happened. Being sensitive to our own emotional baggage is very important but being sensitive to that of the other person/s is also vital. If we are paying close attention we can pick that up as we go along and doing some research prior to the negotiation may also help us to be aware of issues that might arise. Understanding the other person means a great deal of listening, clarificatory questions and feedback. Our own negative emotions can cloud our ability to hear and to be creative as well as colouring our attitude to outcomes. Positive emotions can make us confident and insightful creating more likelihood of positive outcomes. Knowing all this, could we possibly conduct negotiations ourselves for ourselves? I believe we can and some do. Some of us have a natural ability in this area but it is important for all of us to understand that with awareness and understanding all of us can learn how to do this. We need to learn how to do it and in small ways, we can practice it easily and occasionally bring it off by, for example, using relationship issues such as “who does the cooking” as an opportunity for practising such techniques. However, when it comes to major issues like separation or marital breakdown, our emotional baggage may not be so easily overcome so as to enable us to dialogue effectively. We might at that point seek the help of a mediator or a collaborative lawyer to assist us in doing this work.
When we negotiate with someone close to us, it is helpful to think carefully about the person we are negotiating with and not just concentrate on the issues to be discussed. What I am about to say is not the rambling of a tree hugger but rather a very carefully thought out way of helping us to get into the right frame of mind to negotiate. In order to enable us to be open to that person we might focus on gestures or actions that we can look back on in our relationship with that person for which we are thankful. In that mood of thankfulness we might then reflect on our overall goal in the coming negotiation. Without the capacity to extend gestures to the other and without the capacity to appreciate gestures from them, successful negotiation, particularly when it concerns relationship issues, will be well nigh impossible. When we reflect on our overall goal we can then think about how we are going to approach matters or another way of putting this would be that we can strategise. In the mindset of thankfulness and bearing in mind the overall goal, we can look at the issues from the perspective of trade off and/or creating value. We walk a mile in the other person’s shoes and we ask ourselves what will they value, what is important to them and this enables us explore the various options available to us. Then we need to reflect on what is important to us. Only then are we ready to commence the negotiation. Remember that in this context we may call the negotiation, a conversation, such as “I have to talk to John about that” knowing full well that John will be running a mile from that conversation, however, it is, in fact, still a negotiation. If you can combine the above with a nice musing tone, and you need to practice this, plenty of questions and genuine openness, you are on a winner. It is not as easy as it sounds but it is not impossible either and the essentials are the same in any negotiation. Getting into the right frame of mind is three quarters of the way. If we commence negotiations from places of fear and anger then we have no hope of achieving solutions.

The advantage of mediators and collaborators is that they can do all of the above so much more easily because they have no personal stake in the outcome. It is the personal stuff that makes it hard and that is why few of us can manage negotiation for ourselves. Essentially, however, what I have described above is the process of mediation or negotiation and it is also the bones of a collaborative negotiation which is what collaborative family law is all about. When people think about the word “negotiation” they think of something which is almost magical. Secluded armed gun men are talked out into the open and contained by the process of negotiation. Suicides are talked down from the brink, hostages are released, centuries of intransigence are overcome. No wonder I was delighted by that word as a small girl. Did I sense the power of negotiation? Who knows but I know that I also wanted to be a magician. There is a connection between the two. Now I am working with the magic myself.