Custody Battles and Casualties of War

Grand Rapids & Ionia Attorneys

When I was in middle school, Cynthia was the smartest girl in the school. The teachers tried to spread around the “awards” on honors night so that every student received some recognition, but Cynthia got an award in every subject. Each time her name was called, she walked up to the stage and accepted her certificate with an easy smile; kind, twinkling eyes; and a grace beyond her years.

Some years later, as she came home from school one afternoon, instead of the heartwarming plate of cookies and milk, her mother greeted her with a gun- shot to the face. Her two younger brothers met the same fate that day. You see, Cynthia’s mother, a previously respected and active member of the community, was distraught over divorce and custody matters.

Believe it or not, this happened in my community, and I recall that the community reaction 25 years ago was the same that it would be today: “She must have snapped” or “She must be mentally ill” were common utterances. Times have changed. Due to enduring the shock of cases such as Andrea Yates, we are much more immune to children being the victims of violence – even at the hands of their parents.

The one thing that has not changed, however, is that the most difficult and vindictive of custody litigants still have the right to have their “war” waged in front of a judge. This war is necessarily fraught with bitterness and bellicosity. We use the term “fight for custody” as a truism.

It occurs to me that when planes flew into the World Trade Center, we changed the way passengers boarded an airliner. When Hurricane Katrina leveled New Orleans, talk turned to rebuilding the city on higher foundations and improving the levee system. Yet, as more and more children are placed at risk for seriousphysical and emotional harm by the conflicts between parents, no such systemic change has revamped the way problematic child custody matters are resolved. Certainly, mediation is much more prevalent and designated family courts employ and consult counselors and psychologists as a matter of course. But the forum of last resort remains the battlefield of a courtroom.

Now am I suggesting that “the system” is responsible for matricide? No. What I am suggesting is that the adversarial system facilitates the combative and destructive mindset of parent litigants to the extent that their children suffer that oxymoronic plight: “casualties of war.”

Certainly, I am not the first to make these observations. Regardless of the criticism of dubious scientific legitimacy for her landmark study, Judith S. Wallerstien made important and insightful observations. “It is in adulthood where children of divorce suffer most.” Judith S. Wallenstien, Julia M. Lewis & Sandra Blakeslee, The Unexpected Legacy of Divorce 299 (2000). After all, children of divorce are already robbed of the ideal childhood. When the lawsuit of divorce is filed, the community, by virtue of court jurisdiction, necessarily acquires an increased responsibility to the child. Thus, it is through the court system, that the community speaks and can provide the child with the examples and coping tools to grow into functional adults who have a chance at providing the ideal childhood for their children.

One Solution: The Parenting Coordination Team

To provide relief to children, the Ionia Circuit Court has endorsed and implemented the Parenting Coordination Team (Team). The concept of a team as service providers to children grew out of the collectiveyears of experience of the Team’s founding members. Inevitably, in high-conflict custody cases, lawyers and mental health therapists find themselves attempting to navigate one another’s worlds.

When these worlds collide, it is never certain if the judge or referee will receive the most important information relevant to a child’s best interests. Even assuming all attorneys and therapists are competent, their advocacy and opinions must be filtered through the perspective of the party who has hired them. Important facts and nuances are further sanitized through the rules of evidence. Skepticism and questions abound. Is the therapist competent? In how many child custody cases have they testified? Is the attorney skilled and knowledgeable enough to elicit the pertinent information from the therapist? Is important information admissible? Counselors, on their part, must be prepared to endure the almost certain disdain with which at least one of the attorneys in the case will question them. As a result, many well respected and insightful child therapists refuse to participate in the court system. In Ionia County, these challenges dared some professionals dedicated to assisting children of divorce, to rebuke skeptics and ask, “What if we all worked together on the same side – that of the child?” Thus, the Parenting Coordination Team was born.

Parenting Coordination is a relatively new process developed by multi-disciplinary experts and alternative dispute resolution practitioners in the area of family law – specifically child custody. The Association of Family and Conciliation Courts sponsored a Parenting Coordination Task Force from 2003-2005. This task force has developed goals, guidelines, and recommended training for parenting coordination. The AFCC defines parenting coordination as a child- focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high-conflict parents to implement their parenting plan. It does so by helping them to resolve their disputes in a timely manner; educating parents about children’s needs; and, with prior approval of the parties or the court, making decisions within the scope of the court order or appointment contract. The overall objective of parenting coordination is to help high-conflict parents to implement their parenting plan; to monitor compliance with the details of the plan; to resolve conflicts regarding their children and the parenting plan in a timely manner; and to protect and sustain safe, healthy, and meaningful parent-child relationships. In sum, parenting coordination is a quasi-legal, mental health, alternative dispute resolution (ADR) process that combines assessment, education, case management, conflict management and sometimes decision-making functions.

Ionia County is taking parenting coordination a step further with its “team” concept. Current Team members are Terese Paletta, J.D. (family law/child wel- fare attorney/mediator); Melissa Athmann, M.A., L.P.C. (child and family therapist); and Dr. David Meyers, Ph.D. (psychologist). The Team members have been “cross-trained” in mediation, the family dynamics of separation and divorce, parenting coordination techniques and issues, and family courts.

Most frequently, families are referred to the Team by the Family Court Referee. With increasing recognition and success of cases, family attorneys are beginning to refer families to the Team as well, or they are requesting the Team’s services during conciliation hearings before the referee. Because it is very much the philosophy of the Team that parties are not to be enabled or coddled, the order referring a family to the Team requires the parties to initiate contact with the Team and to be individually responsible for the service provider’s fees. These orders are posted on the Team’s secure internet network so that the individual team members all have independent notice of the referral and so that the court caseworkers can also monitor the progress of the file.

The parties first meet with two of the Team members: generally, the attorney and the family therapist. This was not always the case, but one recognized pitfall of the team concept has been the opportunity for litigants to triangulate the comments and recommendations of the Team. The joint initial interview (and limiting the access to team members between appointments) has decreased that opportunity. After the intake with both parties, the Team members confer and develop a plan to address the issues and challenges facing the family. This plan is communicated to the parties and posted on the Team network.

A multitude of services are available. The attorney provides parenting time scheduling and facilitation, mediation, and serves as the “troubleshooter” so that if the parties have questions or concerns in between meetings with their service provider, Ms. Paletta fields these calls. This also significantly reduces the opportunity for triangulation. Before the Team implemented this practice, uncooperative litigants would try tomanipulate the process by suggesting that they were receiving conflicting recommendations from Team members. The double safeguards of the secure network and streamlining the access to the team between for- mal meetings significantly reduces this dynamic and facilitates more rapid progress and resolution of issues.

The family therapist provides parenting education, co-parenting communication assistance, and family counseling. The Team does not offer or provide individual counseling. From the start, the intake team clearly advises the parties that the Team is working on behalf of the children. If necessary, Ms. Athmann may meet with the children individually, but if the Team determines that the children need ongoing therapy, they are referred to a separate experienced child therapist. The parties are also advised that they may seek individual therapy. The Team will recommend a therapist, or the parties may counsel with a professional of their own choosing. But the Team asks that the parties cooperate and authorize release of information between the individual therapist and Team members. This insures that information is shared and that Team reports on the status of the parties and their issues are reliable.

Occasionally, the Team asks its psychologist to conduct psychological evaluations or parenting evaluations of the parties. Since Dr. Meyers has provided these services to Ionia County for over 10 years, his findings are generally accepted as reliable. This helps to expedite the Team’s recommendations and resolution for the family. Dr. Meyers is also a trained mediator. Each of the Team members is also available to provide therapeutic, monitored, and supervised parenting time.

Regardless of the specific services offered in a case, the Team remains in ongoing communication regarding the progress (or lack thereof) in each case. Team members have an open line of communication between one another to confer as frequently as necessary on the cases assigned to the Team. A secure online network provides them with the latest developments and recommendations on each case – daily, if necessary. A significant strength of this team concept is the familiarity that Ms. Paletta, Ms. Athmann, and Dr. Meyers have developed over years and years of working with (and sometimes on opposing sides) of one another on domestic relations cases in Ionia County. Mutual understanding and professional respect enhances the multi-disciplinary method.

If a case progresses so that the court requires a child custody report, a draft of that report is prepared based on input from each Team member. The report is then disseminated to each Team member so that the report submitted to the court represents the consensus opinion of the Team as to the child’s best interests. Each Team member is confident that other Team members respect his or her perspective on the case and that it is given the appropriate weight in determining the ultimate recommendation the Team makes to the court. On occasion, when the Court has issues that require prompt resolution, it may authorize the Team’s recommendation to become an order of the Court, subject to objection and judicial review. The Team’s attorney member drafts the recommendations and reports to insure compliance with local and state court rules.

Progress and Hope

During its first two years, the issues referred to the Team have been diverse. In addition to the all-too-frequent situations of substance abuse and child neglect, Team members have seen shaken baby death, parental alienation, false accusations of criminal sexual con- duct, and agoraphobia. Some cases achieve resolution in several hours through mediation, and others require several months of information gathering and services to the respective families.

Early evaluations have been overwhelmingly positive. Some of the more skeptical divorce and custody attorneys have embraced the program. 90% of the cases referred to the Team have avoided further court involvement.

In addition to the triangulation issue identified earlier, the Team has struggled with how the service providers can be adequately compensated for the work performed. Ionia County is a largely rural county with 28% of the population below the poverty level.

During its inaugural year, the Team received funding from the SCAO as part of the Access and Visitation Grant funds. The Team used these funds to supplement roughly a third of their hourly rates, required the parties to be responsible for a third, and then donated a third, pro bono. When the grant funds were not renewed due to a restriction on the types of services eligible for funding through the access and visitation guidelines, the Team revised its fee structure.

During the second year, the Team observed that the parties actually paid more consistently without relying on the supporting funds. Consistent with its goal of these families accepting and embracing their joint and collective responsibility to resolve these is- sues for themselves, the Team has chosen to not seek additional funding at this time, but rather to equally split the fee for the services between the parties on all billable events (except individual face-to-face consultations). The parties are asked to commit to the Team and to pay up front for each service provider’s first two hours. The fees charged to each party are actually roughly a quarter of the local family law attorney’s current average hourly rates.

Making these services affordable makes healthy problem solving skills accessible to the children of these high-conflict families. And the Team heartily embraces alternative payment options so no family is denied services for inability to pay. The Team continues to pursue funding to grant scholarships to indigent families so that they may participate in the program.

The Team has found these first two years challenging indeed. The work that the families are asked to do is very difficult. Whether it is resolution to compromise on previously non-negotiable matters or venturing into long standing psychological issues, the consensus is that the children of these families are being afforded a chance at healthier relationships withboth parents. In our “previous professional lives” the team members were either advocates in court or cheerleaders on the sidelines as these families struggled with these high conflict and emotionally charged issues. We have adjusted to being confrontational and challenging with both parents when necessary, and we have realized that both sides of the dispute may often unfavorably scrutinize our efforts. But each Team member is confident that this interdisciplinary, cooperative, and innovative approach provides better services to children, families, and the court system. The focus remains at all times on the children, and we never evaluate our results in terms of legal admissibility or acceptability to an aligned party or position.

The approach that the Team has adopted has been well received by attorneys and by court staff. The true measure of success will not be known until some of the children the Team has served begin contributing to their communities on their own terms. Will they develop healthy relationships and families? Will they seek peaceful problem solving outside of a courtroom? Until we are able to evaluate the answers to these questions, the Team does not seek necessarily to “change the world” or “save” the children, as much as it seeks to provide them with healthy examples and alternatives to the conflict that results when their parents and communities let them down.

To learn more about Family Law legal issues, contact our family law attorneys in Grand Rapids today at 616-957-3540.