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Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court by Harvey Brownstone

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All cases are decided on the basis of what is best for the child, not what is best for the parents.  Written by US based Justice Brownstone the purpose is to help separated and divorced parents, as well as parents who never lived together, conduct themselves with the maturity their children need and deserve, so they can resolve parenting conflicts in a civilized and proactive way, hopefully without court involvement.  Advises you to get a lawyer to helps you navigate the complicated legal process. If you submit inadmissible findings, don’t complete forms properly or have an unusual argument that is irrelevant you could wind up with a very large fee as potentially having to pay the other parties legal fees as well.  A lawyer can be objective, it can be hard to be objective about your current situation. 

Family courts are not in the business of rewarding or punishing anyone, even though there is often a win-lose mentality among litigants — and, unfortunately, even among some misguided lawyers. Everyone should be mindful that there are no winners in family court when the fighting continues — everyone loses, especially the children.”

Parents who bring their own custody and visitation battles to the family court must realise that it isn’t like going on television to tell their story to the judge, you don’t simply answer a few questions, then it is completed in fifteen minutes.

Pitfalls of self-representation are mentioned, in America you might have to pay the other person’s lawyer fees.  You might wait a long time for a court case for something that is immediately dismissed, so unsurprisingly is suggesting to obtain legal counsel or if you can’t afford that obtain legal advice. 

It is worth pointing out a central message in this book is that for children, the process of litigation can be extremely damaging.  This is primarily due to the unbelievable stress children experience from being at the centre of their parents’ tug of war.  Children wait for months, and sometimes years, to learn which
parent they are going to live with, while their parents prolong this uncertainty through relentless bickering, personal attacks, and obstructionist tactics.

It is worth asking yourself a question can two parents who love their child or children allow a total stranger to make crucial decisions about their child’s living arrangements, health, education, extracurricular activities, vacation time, and degree of contact with each parent? What person in their right mind would advocate for this method of resolving parental conflicts flowing from family breakdown?  This is essentially what you are asking a judge to do.  A central theme in this book is to avoid court and be reasonable so that you and your ex-partner can make adequate childcare arrangements that work for the children.

Judges seldom witness maturity in parents. Being mature is defined as caring enough about your children that you will force yourself to deal in a civilized way with someone you may hate.  It also means thinking twice and measuring your words carefully before you shoot your mouth off when you’re upset with your ex-partner, especially in front of the children. It means always insulating your children from parental conflict so they know your breakup has nothing to do with them. It means doing what is necessary to make the transition in your children’s lives as easy for them as possible. Being mature means putting your children’s needs ahead of your own. It means truly understanding and accepting that your children are entitled to love and be loved by both of their parents. It means giving your children emotional permission to express and receive that love, even though you and the other parent dislike each other. Being mature means being willing and able to reach compromises so that your children can have peace rather than be caught in a tug of war and conflict of loyalties.

The task of the family court judge because instead of looking forward, parents mostly want to look back. We should be trying to construct a co-operative, co-parenting regime that is in the children’s best interests. Instead, we spend a great deal of time trying to de-escalate the hostilities and refocus the parties away from their litany of complaints against each other.

Regardless of the issues, be it domestic violence or when a parent has a mental health problem or a substance abuse problem, or if a parent’s conduct has exposed a child to a risk of harm, neglect, or abuse – conducting yourself in a mature fashion when dealing with the other parent is generally beneficial does not necessarily mean that the other parent gets everything he/she wants.

What’s wrong with going to court? The court system is based on an adversarial process in which “winning” is the object of the exercise. Parents who should be on the same team for their children’s sake become hostile adversaries in a courtroom. They focus all of their attention and efforts on emphasizing each other’s shortcomings and failings over the life of the relationship. If the parties to a lawsuit have to keep dealing with each other for many more years, as is the case with parents, the effects of litigation on their ability to do so amicably can be tragic and long lasting.

Costs are very high and potentially the judge may not agree with either parent. After it ends life goes on but may take a long time for things to settle children stuck in the heart of this.

Generally courts try hard not to disrupt children’s living arrangements and to maintain as much stability and consistency in their lives as possible. 

Family court judges make decisions by examining the admissible evidence that has been presented and applying the balance of probabilities test. This test requires the judge to decide how much importance to attach to each item of evidence and then make findings of fact on the basis of what is most likely to be true. If some allegation is considered more likely than not to be true, then on a balance of probabilities, that fact will be accepted as true. For example, if one parent accuses the other parent of hitting the child, the judge will review all of the evidence and decide whether it is more likely than not that (1) the child was hit and (2) that the perpetrator was the parent in question. Proof on a balance of probabilities is not the same standard of proof as that applied in criminal court. 

Cases usually end in one of three ways:

1. a trial is held (which is very rare),

2. one or both parties withdraws from the case or simply stops participating in it and is deemed to
have abandoned it (usually because he/she is financially and/or emotionally drained and has decided to “give up”)

3. the parties have negotiated a resolution to the dispute, in which case the court will usually make a final order in the terms of their agreement.

4. Sadly, the parents keep litigating for so long that the child in question grows up and becomes an adult.

In the courtroom each parent will tell the judge emphatically and with great confidence that the children want to live with him/her. Both parents are probably telling me the truth, in the sense that they are repeating what the children have told each of them separately. Children want to be loved and do not want to disappoint either parent, so they will tell each one what he/she wants to hear — what else would you expect from a child who is caught up in a toxic tug of war?

When the judge is confronted with this situation, he might asks each parent to tell him which child he/she loves the most (if they have more than one child). So far he has have never yet met a parent able to answer, even when he presses them and urges them to give me an answer. Then he tells them – “You are adults, yet you are not able to tell me which of your children you love the most. But you expect your children, who are not yet fully mature, to decide which parent they love the most. Do you think you are being fair to your children by making them choose between you?”

Following a parental separation, many parents involve the children in their disputes and place incredible pressure on them to “take sides.” They bad-mouth each other in front of their children, encouraging them to dislike and disrespect the other parent. They bribe, manipulate, and emotionally blackmail their children into expressing a preference for one parent over the other. This is one of the most immature and cruel things a parent can do because it places children in a no-win “conflict of loyalties” situation.  Mentions examples of a child memorising a script to say to a social worker, then proudly stated that they managed to recall everything.  Argues that this is a form of child abuse, attempting to mind wash a child. 

Children shouldn’t have to decide particularly when young, if a child says they don’t want to do something they wouldn’t necessarily get what they want.  For example, if they don’t want go to school, they still have to.  Bear in mind, if the child did get to decide they could be exposed to further conflict if deemed by one parent to have caused the situation.

Parenting skills
A major factor in the determination of a child’s best interests is the parenting skills of each parent claiming custody. There is a wide range of skills that children need their parents to possess and exercise, everything from basic care giving skills (feeding, bathing, diaper changing, making sure children get enough sleep), to organizational skills (getting children to and from school, making sure homework is completed, meeting the children’s healthcare needs), to socialization skills (ensuring that children receive appropriate intellectual, social, and cultural stimulation and community involvement through extracurricular activities). The court will be comparing the parents’ abilities to give the child the safest, healthiest, and happiest childhood possible.  There is no hard and fast rule prohibiting a parent who has committed partner abuse from having a relationship with his/her children.

As hard as this may be for some people to accept, the fact is that a person who has been abusive toward his/her partner may nevertheless be a good parent, especially once the parties are separated and the stress of living in an unhappy relationship is over.

Remember, there are two sides to every story. Each of you has a version of what happened in your relationship, and each of you firmly believes that your own versions are correct. Each side might identify themselves as a victim.  Finding a way to assign blame does nothing to solve your problems. at the end of the day neither of you are able to change each other.

You can be an ex-partner, but you are never going to be an ex-parent. If you truly accept that your children are innocent and bear no responsibility for your separation, then you know that they are entitled to be part of a family and to have their parents behave like family members, even though they live apart.

10 Tips

1. Be child-focused.

2. Learn to distinguish between a bad partner and a bad parent.

3. Never speak negatively to the child about the other parent..  I would add don’t put things on social media – this is crucial as could bite you in court.

4. Never argue or fight in front of your children.

5. Listen to the other parent’s point of view even if you don’t agree with it.

6. Consider mediation before giving the decision-making power to a judge.

7. Separate your financial issues from your parenting issues.

8. Be flexible and reasonable in making access arrangements.

9. Your children still see you as a family, so communicate!

10. Don’t hesitate to get help.

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