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on Monday, 21 May 2012
in The Rockefeller Report 2012

Creating a Perpetual Custody Battle

Dear Readers, This week's column is prompted by an editorial written by Ruth Bettelheim, a family therapist. The central theme of her opinion piece is that children should play a more active role in contributing to parenting plans between divorced (or separated) parents. Ms. Bettelheim addresses the definite conundrum of maintaining strong bonds with both parents, while simultaneously permitting a child to enjoy the many tantalizing opportunities of childhood. Her solutions, though, might be worse than this problem.

Our hodgepodge of matrimonial statutes vary slightly, from state-to-state, while sharing similar basic values. While some aspects of divorce lend themselves to a permanent solution, child custody solutions do not. Hence, any custody or visitation solution is going to be subject to future modification, as necessary.

Still, all states require some sort of "Parenting Plan" which, once legal custody is divided, sketches a potentially permanent dispensation of visitation rights concerning children. These plans, dancing around school and extracurricular schedules, are usually several pages and sections long and address weekend, major holiday, and summer visitation, along with other stipulations concerning telephone contact, communication issues, and decision-making authority.

Ms. Bettelheim, correctly notes that it is hard to peer into the future wants and needs of a toddler, when drafting a Parenting Plan. As she writes, "Imagine yourself as a 13-year-old who wants to spend more time with your friends over the weekends..." Her proposal, then, is that children as old as seven years should be empowered to take an active role in crafting a visitation plan that works for them. Likwise, because of how fundamentally specific a Parenting Plan must be, there should be mandatory review of them every two years.

With all due respect to Ms. Bettelheim (yes, you know where I am going with that as a lead-in), have you completely lost your senses? She blandly notes, "Many children will decline, as they are deeply reluctant to hurt a parent." You think? However, she says that children "as the ultimate experts on their own lives" should be actively solicited to engage in the back-and-forth of setting a visitation schedule and plan. Clearly, the closest Ms. Bettelheim has ever gotten to a custody battle is from her therapist's couch. Just what we need, a process mandating children be in the middle of a custody fight.

In custody battles, judges already gently incorporate the wishes of children as old as 10 or so (roughly) in their rulings when necessary. Generally, this is done by talking to a child in private, when the child asks to speak with the judge, or when one of the parents insists (with good reason). Furthermore, in thorny cases, judges will bring a guardian ad litem, as the child's attorney, into the process, satisfying the role of an advocate for the child who is equipped with an extra set of eyes, ears, and voice of reason for the judge. All of this minimizes trauma to and manipulation of (or by) a child.

However, custody fights are called this because the parents are doing just that–fighting! Both parents are having their hearts ripped out at the idea that little Emily or Johnny won't come running down the steps every morning for breakfast.

In most cases, then, the parents are blinded by what is really best for their child and are focused on only one goal – spending as much time as possible with their baby. This goal burns deeply in their psyche. Having an opportunity to re-fight this same battle every two years, with the hopes of possibly gaining a few hours more of visitation each week, will serve as a source of chaos out of the modicum of order offered by a Parenting Plan. Emily or Johnny also quickly learn they can throw out some trial balloons about what it might "cost" to gain their support in changing the visitation plan, manipulating Mommy or Daddy.

Ms. Bettelheim, your idea, despite its noble birth, is awful. All it will do is create spoiled brats, children torn by their affections, and entrench most fractured families in a new war every two years.

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