Written by John Crouch
I ask, “Have you agreed on the children’s custody and visitation?” “Custody? We haven’t talked about that, specifically, but we’re real agreeable about everything. I’m sure he wouldn’t try to take my children from me. I’m not abusing or neglecting them, so the government can’t take them away from me, right? Anyhow, I want him to stay real involved with them. He can come see them at my Dad’s house whenever he wants, as long as he learns he has to check with me first so he doesn’t disrupt their schedule. They need to know where their home is and who they can depend on, just like before we split up.”
Across the street in my friend Karen’s office the same conversation is going on, up to the point where the husband says, “Custody? We haven’t talked about that specifically. But everybody gets joint custody nowadays, right? I would never try to take the kids away from her. I’m happy to live with 50% of the kids’ time. They still need both parents, just like before we split up.”
Karen and I tell them the law probably won’t give them what they want unless their spouse agrees to it, and there’s a wide range of possible outcomes in court. If this gives them any second thoughts about divorce, it’s usually already too late. They’ve told each other they are going their separate ways, and to put that genie back in the bottle requires two people who trust each other. At this point they’re too worried about winning the first battle to start thinking about how to avoid the whole war.
That afternoon I get a call from my client’s father: “That bum walked out of my daughter’s life and my grandchildren’s lives and now he’s trying to disrupt their lives even more with his “visitation” idea. I’m hiring you to get the judge to tell him to stay out of my family’s lives. If he can’t be a husband and a father, she needs to find a guy who can do the job. Anyhow, we’re bringing you on board to do whatever it takes to get rid of this guy. Got it?”
Now, I don’t do what the father says. Ethically, I couldn’t if I wanted to, and I wouldn’t if I could. But a lot of people share his view of divorce and fight for it, and often win, through sheer brutality and attrition.
So, our clients have just talked to each other and discovered that they disagree profoundly about how they will do their job as parents. Will that make them reconsider the divorce? Not likely. In our unilateral divorce system, reconciling would require identical individual decisions by two very different individuals who’ve just discovered another reason to distrust and dislike each other. So they will fight about it. You can fight about custody until all the children are grown, or one parent runs out of money. Who wins depends on the money, and the will to keep fighting.
As the process goes on, these innocent, well-meaning parents will learn that in divorce court, nice guys usually lose; and that tactics which the system officially condemns — such as turning the children against the other parent, or filing frivolous motions just to harass or impoverish their spouse — work as intended more often than they backfire. Faced with unprecedented economic desperation, and feeling like victims, some previously mild-mannered clients will decide to copy this behavior, and become worse people.
Clients leap into divorce based on with their own unexamined expectations about it. If they could know the actual outcome before the point of no return, would they still divorce? I wonder the same thing about the advocacy groups and media that speak for different parts of our society on custody questions. Women’s groups and women’s media assume that a woman has a right to totally control the children. They express outrage at specific cases that don’t fit with what they think the rules are. On the other side are divorce lawyers, mediators, and father’s groups who promote “the good divorce” and emphasize that divorce doesn’t have to be ugly. They think joint custody and family-friendly courts are the wave of the future.
If either side was not so confident about winning the custody wars, would they still favor widespread, unilateral divorce? I hope that one day, both sides will realize that divorce does not live up to their expectations, and is not going to, and they will turn their attention to preventing divorce, not perfecting it.
But for now, people caught up in the divorce system are not looking at the big picture. They’re outraged that their individual divorce didn’t measure up to their lofty expectations, and they’re blaming the other spouse, the other sex generally, the judge, and the lawyers. I am who people come to, to bridge the huge gap between their divorce fantasies and reality — and often, I’m who they blame for that reality.
Every day my work makes me reflect that we have legislated for widespread divorce but we cannot figure out a system that will make divorce work — and we’ve been trying for forty years now. That keeps me motivated to find a way out of this vicious circle of alienation and social conflict. Yes, I still work to make divorces better. But we need to put much more effort into preventing marital breakdown in the first place.