What you can expect from Family Courts when you divorce with children.
In Part 1 of this article*, I brought up some things to think about before you end a relationship. The list of considerations changes a great deal when there are children involved, even if there has never been an actual marriage. Part 1 still applies, and is I hope good advice for preparing yourself for relationship breakup, but there are very important additional things to know if you and your partner have children together.
I am not an attorney, so nothing in either of these articles pretends to be or should be taken for legal advice. The points I am making are aimed at helping you prepare yourself emotionally and strategically to make one of the biggest changes you can possibly make in your life, and in your children's lives.
Baby makes three, Judge makes four. Over the past thirty years, divorcing with children has changed as the legal system tries to do a better job at handling highly personal family situations. The results are stunning improvements in some cases, and failures in others. Family law is a work in progress, to say the least.
Currently, instead of dividing the children like the rest of family property, custody of minor children is now a two-part agreement; legal custody (decisions about medical care, schooling, religious upbringing), and physical custody (who has the children with them and when). The physical custody arrangement may be the basis of computing child support. Even if you and your partner agree about these matters, the judge who signs off on your divorce, making it legal, may not agree, and request or even impose changes.
This happens because the judge in Family Court has evolved into a representative for the children's best interest, and what that involves varies not only from place to place (divorce is a local matter), but also from judge to judge. Two examples:
1. You and your partner agree that you will have full legal and physical custody of the children. You appear in court to have the Judge sign off on your agreement. Surprise! It is quite likely that you will have to defend that agreement when the Judge asks you "Why shouldn't the children's father have a voice in making important decisions in their lives?" The current position of divorce courts in the United States is that keeping fathers in the picture is important, and even very bad behavior on the part of the father may not exclude him from sharing legal custody. This turn of events is something you have to be prepared for, with all possible documentation. The Court will want, and may even insist, that you share decision-making with the person you are divorcing, even if that makes your life very difficult, and provides a continuing opportunity for an abusive person to continue tormenting you.
2. You are splitting assets, and you agree to forgo child support to get other concessions. Once in Family Court, the Judge will not allow the agreement. Child support money is for the benefit of the child, and you do not have the right to deprive the child of that assistance, even if it makes for a clean break and there are other counterbalancing benefits. Now you have to deal with the problems that come from getting a financial declaration from an unwilling spouse, and other complications if your partner refuses to pay, quits his job, blames you for this imposition, etc.
If you are divorcing with children, educating yourself as part of your decision-making process is absolutely critical. The things you didn't know when you decided your relationship was no longer salvageable are the things that will make your life much more difficult than necessary down the line.
Visit the NOLO website, buy or borrow the current books for the state where you will be divorcing, and learn everything you can WITHOUT COMPROMISING YOUR SAFETY OR YOUR PRIVACY. You need time to think without revealing your thoughts and plans to family, friends, or your partner. This is not the time to be an "open book"; you should be looking to people who know the legal system, understand your state support system, are informed about resources for keeping you safe, and who will share their knowledge with you while maintaining your confidentiality. Talk to advocates at the local self-help legal clinic at a courthouse where you are not going to run into anybody you know, and seriously consider sitting in on some Family Court sessions. The proceedings are public. You will learn a great deal by watching other people get restraining orders, divorces of all kinds, and discuss custody, support, and safety issues with the Court.
Children as weapons. You are ending your relationship for multiple reasons, and some of those probably involve how you and the children are being treated. The sad truth is that the patterns of behavior that are breaking up your marriage will not stop after you leave and may even get worse. Damned if you do, damned if you don't?
Actually no, you can get out and build a safe, peaceful life, but it's a process, and if you have children, you remain connected to a person who may use that connection to torment you until they are 18. Planning for the reality of continuing problems, with the children used as pawns or weapons, is your best defense. Even if you hope for the best, educate yourself about what might happen, and put yourself way ahead of the game. Start by reading "The Batterer as Parent" and "When Dad Hurts Mom: Helping Your Children Heal the Wounds of Witnessing Abuse", both by Lundy Bancroft.
"But my partner isn't abusive. He doesn't beat me up. He may be jealous, or spend money we don't have, have addiction issues, be unfaithful, uncommunicative, controlling, etc., but I'm not a victim of domestic violence". In my experience as a domestic violence advocate, supporting women who are going through the process of leaving a relationship that isn't working, I hear this over and over again: "I didn't realize how bad things were until I left. In the middle of it, I had a protective shell of denial that I used to help me survive. When I put aside that shell, I could look back and see how abnormal things had become." What other women would tell you if they could is that educating yourself and looking at worst cases can be your best asset.
It's not a sprint, it's a marathon. You are going to be co-parenting with your children's father until they are 18 unless your situation is very exceptional. You will go back to court or mediation numerous times to change the support order, legal and/or physical custody orders unless your situation is very exceptional. A vanishing ex-spouse can reappear and want parental privileges, children grow up and decide or are bribed to leave you and go live with your ex. In other words, it's going to be a long time before you can walk out of court and say with confidence "Well, that's finally over with". Planning for a marathon instead of expecting a sprint makes all the difference in your ability to go the distance with dignity.
You will quickly learn that the Court and your children are uninterested and even hostile to being drawn into the personal drama that is the death of your relationship. They may even be unsympathetic if abuse keeps happening. You will probably find yourself sucking up a lot of low-level stress and harassment because it doesn't rise to the level the legal system will respond to, and hiding things from the children to keep them as protected as possible. In a word, you are going to need a support system to help you recover and build a new life over the next decade.
Therapists are the classic support source, but there is another one you might hesitate to use - the support groups managed by local nonprofit domestic violence shelters. Call a local domestic violence hotline and speak CONFIDENTIALLY to an advocate about what you are going through and ask what resources are available for you, either in their agency or others near you. Going to a support group where you are in the presence of other women going through divorce, through the courts, dealing with Child Protective Services in some cases, may not be for you, but give it a try. It could be the safe space you need to energize you for the task ahead.
*Read Thinking of Leaving Your Relationship? Part 1 - No Children here, or also on YourTango.com