Another contributing factor in custody litigation is the success the fathers’ rights movement had in the eighties lobbying for legislation favoring joint physical custody over older laws that favored the assignment of a primary custodian and a single residence for the child. Many states adopted joint physical custody presumptions, and California even determined that the courts should favor joint physical custody whether or not the parents did. Fathers went on to win child support concessions based on a concept of joint custody.
Certainly many fathers are fighting custodial battles because they sincerely believe they are acting in the best interests of their children. Others may not actually want custody, but instead, Mason points out, they use their newly gained rights to influence their support obligations. By “influence,” Mason means lessen. It works like this: With joint physical custody—sometimes referred to as shared custody—child-support obligations are determined not by income guidelines, but rather by careful calculations based on the percentage of time the child ostensibly spends with each parent. Critics call it “Rent a Child” and draw attention to the fact that women and children still experience a dramatic drop in their economic standard of living after divorce (while men do not), and supporters say it’s the overdue answer to archaic child-support guidelines that unfairly strap fathers. Either way, it’s become a factor in the custody wars. Mason’s book cites one California attorney who represents mostly men, and who admitted that “about sixty percent of my male clients ask for joint custody now, but only ten percent really want it. It’s a good bargaining position.”
“I have been very disappointed in most manifestations of ‘father’s rights,’” said Sarah Ramsey. She referred to the gaggle of organizations, many of them with powerful lobbies and the word “children” in their names, who are directly or tangentially tied to the creators and signatories of something called the Father’s Manifesto. The Manifesto, easily accessed on the web, is a kooky but frightening document that demands, among many other outrageous things, a return to chattel rights for fathers and the repeal of women’s right to vote. The problem is that you won’t find the Manifesto reprinted on the myriad fathers’ rights websites that are covertly associated with it. So the average dad facing an emotional divorce and looking for a quick tutorial on the Internet to help him demystify the process is bound to stumble into the dens of several fathers’ rights groups telling him in every possible way that if he doesn’t sue for custody he’s a pantywaist and a failure.
Obviously, not all fathers’ groups support the Manifesto, and many provide valuable services to fathers and families. They’re easy to distinguish from the anti-mother lobby groups, as soon as you begin to read their published material. The Resource Center for Fathers and Families is an excellent local example. Its vision is “children with both fathers and mothers active in their lives as parents and as partners in parenting,” and its mission is “to provide resources that will help men become better parents and better parenting partners regardless of marital status, and to provide the model that all children deserve.” The agency “believes strongly that win/win in the parenting partnership is the only way that children and their entire family, no matter its form, can thrive.”
In contrast, a sampling from any smattering of general fathers’ rights pages on the web will reveal red flags ranging from overt mother bashing to the sale of various kits and pamphlets on how to avoid child support and beat allegations of domestic abuse.
“Too often these groups seem to be populated by angry, controlling men,” said Ramsey. “They’re upset about having to pay child support and they expect their ex-wives to conform to their expectations with regard to location, new husband, type of visitation, and so on.” That fathers are important to children and should be a part of their lives is obvious and well acknowledged throughout the system. “But their emphasis should be on parental responsibility and the well-being of children,” said Ramsey, “not their ‘rights’ as fathers.”
For the record, Todd told me that in his case child support was never an issue. He and his wife jointly owned a small business that’s done very well over the years, and Todd has no problem with guideline child support. It’s the sixteen thousand dollars a month in permanent spousal maintenance he objects to, and the accusations against him of negligence and poor parenting that he claims are false and unfair. He didn’t sound angry, he sounded defeated. He’s spent the last three years of his life fighting in a system he calls “hideous,” waiting for his future to be ordered by the court. The verdict is still out, but it’s not looking good. And for the most part, it’s out of his hands.
“That’s exactly what our kids feared the most,” said Chloe (not her real name), a forty-four-year-old mother of three, freshly divorced in June. “The idea that some judge could interfere with our lives and tell them when they could or couldn’t see us. That really scared them.”
Chloe agreed to meet me in a sunny coffee shop blaring with upbeat Latin music during the after-church rush because she feels a responsibility to tell people that there’s a better way, a radically better way.
She and her ex-husband completed their divorce collaboratively, which is not the same thing as “cooperatively,” or “civilly.” It’s a distinct, specialized legal process wherein each spouse is represented by his or her own collaborative attorney, and both attorneys and spouses sign a contract at the beginning that promises to keep the matter out of court, period.
“I don’t think it’s very widely known at all,” she said. “I wouldn’t have known about it if it weren’t for the fact that Ron Ousky [Chloe’s collaborative attorney] was a neighbor of ours, and I spent some time chatting with him at a book group a couple of years back about what he did for a living. It caught my interest, because even though we weren’t exactly on the brink of divorce at the time, it was a discussion we were having on and off.”
Ron Ousky is a Minneapolis family law attorney whose practice includes both collaborative and traditional casework. He is president of the Minnesota Collaborative Law Institute, an umbrella organization with fifty-six attorneys on the member roster. His enthusiasm for the collaborative model is infectious. “Sometimes when I speak to groups, I think of the custody battles I’ve handled as a traditional matrimonial attorney, and I pick those people who stand out as the ‘biggest winners,’ the ones who got everything they wanted, and every single time those people, five years after the fact, are less happy than those who settle their divorces collaboratively.” That’s not hard to picture. Where there are big winners there are big losers, and the losing side is often so damaged by the process that they cannot stop trying to punish the other person, which can often mean being dragged back to court over visitation and parenting disputes. The fight can go on forever. Children caught in the middle of this unending parental conflict don’t fare well. Ousky has watched over the years as the least fortunate finally try to escape by running away or committing suicide. “That’s not viewed as success by anyone,” he said. But once the court holds the keys, it’s hard to stop wrestling to get them back.
When the marital counseling that Chloe and her ex-husband were doing reached a dead end, her ex-husband spoke to an attorney, and Chloe called Ousky. The couple attended an informational meeting with Ousky, and they were both sold on the idea of a process that would keep their kids at the center, keep them out of court and away from the control of the judge, and keep their savings intact. Chloe’s ex-husband dropped his attorney and retained Stuart Webb, one of two Minneapolis attorneys who practices collaborative law exclusively and the man who is known as the founder of the collaborative movement.
In 1990, Stuart Webb had been slugging away for two decades as a
divorce lawyer, helping people like Todd and his ex-wife spend their
savings on tearing each other apart, with kids running for cover in the
crossfire. “I felt like I was living in a siege mentality; it was a
crisis practice,” he said. “In litigation-style family law, there is
always something horrible coming up.” Finally one morning he woke up
and said, “I quit.”
At that point, Webb was so
fed up he just wanted out of family law altogether. But then he had an
idea. “I thought, if I’m willing to get out of the practice anyway,
then maybe there’s a way that I could do this outrageously, way out of
the box.” Webb, a longtime practicing Buddhist, had a vision of a
radically new way to practice family law, where court was simply not an
option, and attorneys on both sides would sign a contract at the outset
that prevented them from litigating the divorce. Instead, all parties
involved would sit around a table and work out a settlement with full
disclosure and no threat of ending up in a trial. That’s when it all
clicked, and collaborative family law was born.
“So on January
1, 1990, I declared myself a collaborative lawyer,” he said. “But there
were no other collaborative lawyers, so that was a bit of a problem.”
He laughed heartily. “But I eventually recruited some willing
attorneys, first four or five, then about nine, and then more and more
until the whole thing spread across the country.” Collaborative law now
exists in thirty-five states and nine Canadian provinces. This spring
twenty lawyers in Vienna attended a training conference, and in the
fall fifty more will gather in London.
What happens, said
Webb, when you take “the court away from the lawyer,” is that these
attorneys—who’ve been trained since law school to fight, to be
gladiators—have to take a whole different approach, and sit down and
help their clients figure out how to solve the situation without
bloodshed. Because, as Chloe pointed out, if you have kids, you’re
going to be dealing with this other person for the rest of your life
anyway, and it’s either going to be hell or not. Once you set off down
the adversarial path to court, it probably doesn’t matter if you stop
short of the courthouse door—you’re still going to lose some limbs in
the process.
Another important advantage of collaborative family
law, say its supporters, is the fact that it’s much less expensive.
“I’d say it’s about a third of the cost of a traditional divorce,” said
Webb. “Because you’re only paying for time you’re actually spending
with your attorney—there’s none of the endless back and forth of
discovery and motions and affidavits at a couple of hundred dollars an
hour.” Even so, attorneys don’t always earn less practicing this way.
Ousky said his traditional family law practice is more lucrative, but
Webb said he’s making more money as a collaborative attorney than he
did before. “There’s this idea in Buddhism about the eightfold path,
and one aspect of that is right livelihood,” he explained. “So you
could say this is right livelihood for me in every way, including
financially. Practicing this way has made my life a joy.”
“The
whole thing cost about ten thousand dollars by the time we were done,”
said Chloe. “We did a lot of the work on our own, figuring things out.
We’re sharing custody, but since Steve works long hours and travels a
lot, I have the kids a little more. He pays child support and spousal
maintenance so that I can have time to get retrained for work. I have a
medical degree but have been home for ten years with the kids.”
Chloe
says there were times when other men would say to her ex-husband, “Hey,
she’s got a medical degree. She can go to work, why should you pay
spousal maintenance?” Spousal maintenance, formerly known as alimony,
is entirely separate from child support. It is not directly related to
the children or their provision (and can be awarded even when there are
no children). When one spouse stays out of the workforce to support the
other’s career advancement and/or raise the children, especially for a
period of ten years or more, that person can be entitled to temporary
or permanent maintenance payments in the eyes of the law. In Chloe’s
case, both parents agreed they wanted to minimize the changes for the
kids, avoid the introduction of babysitters and other unfamiliar
stresses, and make every transition as gradual as possible. So Chloe’s
returning to work half time instead of full time and training on the
job, while her ex-husband—a cardiologist—will keep doing what he’s been
doing for years. “He makes a lot more money than I do or could at this
point, and his earning potential is higher. But once our youngest
graduates from high school, I’m on my own, and that’s great. This is a
temporary arrangement, and it’s really about the kids. Their father
says that anger and bitterness corrode the vessel that holds them.” She
paused. A crack appeared in her normally composed demeanor, and a
faraway look came into her green eyes. “Well,” she said, shaking it
off. “In the end you want to look back on the marriage and remember
what was good about it, and you want your kids to do the same.”
Sarah
Ramsey said she’s hearing some good things about collaborative law, and
that it seems to hold some promise, although it’s certainly not widely
known. “But there are some criticisms,” she said. “Some people are
concerned that it favors the more powerful person in the
marriage—traditionally the man—and that it may put women at risk of
agreeing to settlements that don’t necessarily meet their needs or the
standard of fairness.”
“I don’t really see that as a concern,”
said Chloe, “because each of you has your own attorney, who’s really
advocating for your interests, even though you’re working as this
four-person team.” That’s a distinction that makes collaborative law a
whole different animal than mediation, a process that for many couples
is just a pit stop on the way to court, because although it’s less
expensive by the hour than hiring two attorneys, neither spouse has an
advocate right on the spot in the process, unless they pay the mediator
and both attorneys, which negates the cost advantage.
“I don’t
know where we would have gotten the money to pay any more than we did,”
said Chloe. “There’s only so much in the pot, and you figure all you’ve
got to divide up is what’s left.” But it’s clear that cost isn’t the
critical reason Chloe feels so lucky to have discovered collaborative
law for her divorce. “I know a couple right now that’s divorcing, and
when they started out, it was with every intention to be friendly,” she
said. “Then they hired their attorneys, got started on the paperwork,
and within a very short time it’s gotten very unfriendly.”
“The
financial waste is bad enough,” said Judith Johnson, the family
attorney I met with at Speeter, Johnson, Hamilton and Wurst in
Minneapolis. “But what it does to destroy the working relationship
between the parents is a lot harder.” Johnson maintains about half of
her practice with collaborative cases, and she tries to encourage all
of her clients in that direction. For her, it’s a matter of who
maintains control of these important issues and how parents are going
to be able to cooperate after the fact.
“It’s a lawsuit, after
all—you’ve got a petitioner and a respondent and they’re pitted against
each other,” said Webb, who applauds the efforts of the ALI but
ultimately shrugs off the report. “So then you don’t have experts
testifying but you have parents arguing, ‘I changed the diapers five
times a week,’ ‘No, I changed them eight times a week,’ and it goes on
and on. In the collaborative model, if the parents get stuck on
something, there are a number of ways the clients can agree to resolve
it, anything from flipping a coin to arbitration to hiring a private
judge. There are a hundred ways to stay out of court.”
Or get
out of court once you’re in it. Johnson pointed out that she has
handled many litigating couples who ended up with big regrets about
having the details of their darkest days as part of the public record.
And they decide, “You know what, we’re going to cooperate to go back
and get the court file expunged, have a little burning party. It’s
never too late to decide that you’re going to have a positive future.”
“That
was a big deal for us,” said Chloe. “We told the kids that we’re always
going to be a family, just in a different form, and maybe down the road
it will include new people, because neither of us want to see the other
person be truly lonely. But no matter how the family changes, they’re
always going to have a mom and dad working together and backing each
other up.” She recalled an evening when she tried to answer her
14-year-old daughter’s questions about the divorce, being honest but
careful, and she finally ended with, “Your dad is one of the best
people I’ve ever known, and you’re lucky he’s your dad.” She got that
look again, and it started to sound to me as if these two should have
stayed married. “That’s what my mother says,” Chloe said with a rueful
laugh. “That if we can get along so well in all this…well, you know.
But to tell you the truth, the collaborative divorce itself really
helped us get some of our differences straightened out. I don’t know
how it would have turned out if we’d ended up with a traditional
divorce in the court system.”
“The fundamental question is
whether these family matters belong in court at all,” said Webb.
“That’s not a question I can answer, but let me tell you a story,” he
said in a gravelly voice, sounding a lot like the grandfather he is.
“There’s a community in Canada called Medicine Hat. It’s got a
population of about fifty thousand people. It’s about eighty miles
north of Montana, and in Medicine Hat there are thirteen family
lawyers. Twelve of them have taken collaborative law training and are
doing collaborative law exclusively. The court calendar has gone from
eighteen or twenty items down to two. One family judge transferred to
another location. Collaborative law is really changing the norm there.
It’s more or less shutting down the family court.”
Sounds great, but
is it realistic outside of Medicine Hat? “I just feel so strongly about
this,” said Johnson. “I don’t think that most cases belong in the
litigious setting. There are some cases absolutely that do, where there
are extremes of mental health problems with one or both spouses, or
where there are extreme financial concerns and stresses. Those cases
should be given top priority on the crowded court calendar so that they
can go to the top as quickly as possible and get immediate attention.”
The
influence of the court will inevitably remain profound. The shifting
laws that govern family courts affect everyone, because our
expectations of the law influence the way any settlement, even a
collaborative one, will be reached. And with the divorce rate hovering
at about fifty percent, people will continue to be aware of how the
choices they make in structuring the roles and responsibilities in
their marriages might someday affect the way their lives shake down
after a breakup.
As Mary Mason points out repeatedly, custody
issues are not likely to become simpler. While technology advances and
marriage loses its footing as child rearing’s central institution,
greater numbers of unwed fathers and non-biological parents (including
stepparents, adopting parents, and grandparents) are fighting for the
custody of children they’re raising. Custody is “a central concern for
the majority of Americans,” and the framework we develop to deal with
the disputes will affect us all. Do we want strangers dividing up our
families at their profit and our expense? Marriages are going to keep
on dissolving while the institution itself redefines itself. Meanwhile,
families are going to go on reshuffling. But until we develop new
models for handling divorce and custody disputes, the legal morass will
persist.
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