Equal Access Isn't a Fathers' Rights Issue, It's a Kids' Rights Issue!

     Egos and emotion often get the best of parents going through a divorce. The natural tendency to want to win, whatever winning means in this context, drives ordinarily rational folks to do very irrational things such as fighting over who can consent to elective surgical procedures, or whether Dad can pick up the children from school or if it has to be at Mom’s front door. Family law attorneys, like me, have built their business around these types of disagreements, which are mostly petty feuds with one parent gaming to have more. More time. More control. More money. The problem I see is that giving one parent more makes the other parent less – and the key here is that the kids see that and believe that one parent is less than or cares less than or wants to spend less time with them. This less and more tug of war is one of the things that bothers me most about family law cases.

     When a marriage is beyond repair, couples get a divorce. But what about the family? Was the family broken too? Probably not. What I generally see in my practice are parents who both love their children and who have genuine fears about how the divorce will affect their little lives. Often my clients praise the other parent for their love and dedication to the children. So the question remains… why are we dissolving the family and not just the marriage? Why are we perpetuating this less and more tug of war? Who’s looking out for the kid’s rights in the divorce?

     I like to think of a divorce in terms of restructuring the family. We all used to live in one home, now we have 2! What adult wouldn’t like to have 2 homes (e.g. a lake house, a condo in Aspen, etc.)? Fighting to get the custody trophy is antithetical to good co-parenting. Mother’s rights… Father’s rights… I don’t get it. What about kid’s rights? I firmly believe the presumption in the state of Texas should be that children are allowed to spend equal amounts of time with both parents who have shown a genuine interest in putting the kid’s needs first. Certainly there will be instances where that presumption will be rebutted because one parent is unavailable, unwilling, or unfit for that level of care, but what I see every day are parents who can’t believe that could actually be an option. Why should that shock the system? Children are taught (by their parents by the way) about fairness. Right and wrong. What could be fairer than evenly sharing time with both parents? There are no sides to take here. No preference for one parent over the other.

     The problem with the Texas Family Code’s Standard Possession Order is that it’s weighted so heavily toward the end of the week and weekends. A parent who has that schedule will never see his/her children on a Monday, Tuesday, or Wednesday night during the school year unless it’s a holiday. So the parent who does have the kids on those nights becomes the taskmaster, the real parent. The parent who oversees homework, insists on chores, makes doctor’s appointments, enforces bed times, etc. And the parent who sees the children on Thursday, Friday, and Saturday nights becomes the “fun” parent. The one who lets the kids stay up late, takes them out to dinner, to see a movie, goes to soccer games, the park, you name it. It is inevitable that the children will come to see the Monday, Tuesday, Wednesday parent as the steady, reliable, conscientious parent, while the weekend parent is the fun-loving, easy going parent.

     I suggest that both parents should be Monday-Sunday parents with an opportunity to experience both sides of parenting. I believe children should see both Mom and Dad as reliable, conscientious, and fun. But most of all, I believe children should be given the chance to equally love both parents and share similar experiences at both houses. Is that so radical? Equal access is not about either parent’s rights. It’s about a kid’s right to love both of their parents in a way that is not threatening to anyone’s sense of fairness. Now that’s a presumption I can get behind.

Collaborative Law Divorce – Because Your Family Deserves the Very Best

Maybe you’ve stumbled across this article because your spouse is talking about filing for divorce. You’re in “bunker mode” — feverishly searching the Internet for information about what to expect and, most importantly, how to protect yourself. Or perhaps you’re the one contemplating the divorce. Either way, if you live in Texas, you must educate yourself about collaborative law.

There are three ways to get divorced in Texas. The easiest is the uncontested divorce. Here both spouses sit down and reach an agreement on all issues. Often only one attorney is involved, and that attorney serves to execute the agreements in the form of an agreed upon final decree of divorce. The second and most common way for couples to divorce is the traditional litigation model. One spouse files. The other spouse is served. The parties have a temporary orders hearing and the posturing begins:

• “I want this.”
• “I deserve this.”
• “The kids should live with me.”
• “I’m entitled to [fill in the blank].”

Each side begins conducting discovery, attempting at every turn to devalue property they want, enhance the value of property their spouse wants and uncover bad facts about the other parent. Throughout the process both sides are preparing for war — the final trial. But the final trial rarely occurs. By the time the discovery process is completed, the parties are exhausted, terrified and out of money. The idea of risking a bad result at trial almost always leads the parties to settle, either informally or through mediation. The end result is a hodgepodge of what you think is your best day in court versus what the other side will agree to. You walk away thinking, “could I have done better?”

The third way to divorce in Texas is through the collaborative law model. In collaborative law, all of your energy is focused on the final agreement. Both parties and their attorneys sign a contract promising to resolve every issue outside of court. If an agreement cannot be reached, the parties must get new lawyers and start from scratch. The crux of collaborative law is the team approach to putting the puzzle together. It starts by setting goals. Every step after that is aimed at helping both of you reach those goals. With the help of a neutral mental health professional and a neutral financial professional, you eliminate the posturing. The entire team’s energy is focused on achieving goals that the parties disclose in the first meeting. It’s still a negotiation, but it’s interest-based — e.g., “I want our children to stay in their same school” — rather than positional — e.g., “Well, I’m keeping the house.”

Clients who have been through the process say that the team approach is much more comforting than knowing it’s just you and your attorney suiting up for war. But I caution you — this is not group therapy. It’s a difficult process. The good news is that your team of professionals is organized around only one mission — helping you and your spouse achieve your goals. Divorce is a scary place to be. Choosing from the very beginning to handle the restructuring of your family in a private and dignified manner will ensure you and your former spouse can continue to communicate and cooperate long after the divorce is completed.

The Internet is filled with information about collaborative law. One of the best sources is the Collaborative Law Institute of Texas website at www.collablawtexas.com. This site can answer your questions, let you hear from actual clients who have participated in the process and let you search for an attorney who is trained in collaborative law. I also have information about collaborative law on my website at www.jenniferwiggins.com/collaborativelaw/index.php. If you’re in that scary place searching for information about a pending or impending divorce, do yourself a favor and educate yourself and your spouse about collaborative law. I know you won’t be sorry you took the time to do this research. Doesn’t your family deserve the very best?