What’s Best for Your Children? - Child Custody€¦ · What to Know About Child Custody and Support 12 Your Options When Dealing With A Harassing Spouse or Ex-Spouse 16 Combating

What’s Best for Your Children?

A Guide to Help Parents Going Through a Separation or Divorce

First Edition

By Kevin Colwell, Esquire

The Colwell Law Group, LLC

Copyright © 2017, The Colwell Law Group, LLC Albany, New York

All Rights Reserved.

For compassionate, intelligent help with your New York divorce case, call the team at the Colwell Law Group at (518) 462-4242 for a confidential consultation, or visit www.colwell-law.org.

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Table of Contents

Introduction 4

The Three Ways to Get Divorced In New York 8

What to Know About Child Custody and Support 12

Your Options When Dealing With A Harassing Spouse or Ex-Spouse 16

Combating Allegations of Parental Alienation or Abuse 19

How Divorce Affects Small Children—And What to Do About It 23

Moving On: An Etiquette Guide for Newly Divorced Parents 25

How to Pick the Right Divorce Lawyer 28

What Makes the Colwell Law Group Different? 31

Moving Forward: The Questions Still to be Answered 35

Disclaimer 38


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Introduction

Going through a divorce or separation can be one of the most difficult experiences in one’s life. Yet for all the pain that comes with a failed relationship, there may be a measure of hope and relief following the end of a troubled partnership.

However, for the children of parents who are separating or divorcing, it's an entirely different situation. Even if you and your partner were never married, the presence of children means that your connection never really ends. And resolving this ongoing relationship will, at some point, involve the legal system. Therefore, there are multiple simultaneous issues you must deal with, from concerns about your children's psychological well-being to legal and financial matters.

These are complicated, emotionally charged matters, but we’ve found that knowing the issues, and understanding the process, can help ease the strain.

Given that, we want to provide you with a practical guide that answers questions about separation and divorce.

Our goal with this book is to lead you through that process, so you will be better prepared–both financially and emotionally. And with that, be confident you're doing all you can to help your children through it, as well.

We have designed this book in a question-and-answer format, because we have found this to be the most effective way to help our clients. To get started, we're going to explain a few general concepts and legal terms. Then we'll move on to addressing some of the pressing concerns we've frequently heard from our clients.

Some common questions we'll answer in coming pages include:

•  What are the different ways to get divorced in New York, and how do these affect children?


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•  How do child custody laws work?

•  How is child support decided?

•  How can we alleviate or even avoid harmful emotional effects on our children?

•  What is parental alienation?

•  How do we handle the children's extended family–including the soon-to-be ex-in-laws–and others in their lives (friends, teachers)?

By the end of this book, we aim to put your mind at ease.

No doubt, you will probably still have questions. We encourage you to schedule a consultation with one of our lawyers. We will be honored to provide more specific answers to your unique situation.

And in the meantime, please know this: You don’t have to go through this alone.

What Is The Difference Between Legal Separation And Divorce?

In New York, both a divorce and legal separation result in determinations of your and your partner's rights and responsibilities on matters of child custody and support, spousal support, and division of property and assets.

However, a legal separation is a voluntary agreement, and you remain legally married to your spouse. Thus in a separation, some benefits–e.g., health insurance–may continue, when they would otherwise end with divorce.

By contrast, a divorce is a legal proceeding, which means that state law requirements must be fulfilled during the process. Therefore, a court can make its own decisions about custody, assets and so forth. And because a divorce is a court order, then a divorce decree may be more easily enforced than a separation agreement.


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Some states require a married couple to be separated before filing for divorce, but, in most cases, New York doesn’t have that requirement.

What Assets Should I Expect To Keep Or Divide?

According to New York law, if divorcing parties can't agree on the asset split, a court has authority to make the asset division on its own. (A court doesn't have this ability in the event of a separation, since the couple remains legally married.)

In New York, marital property is divided according to the rule of “equitable distribution.” Rather than cutting the asset pool in half, the court makes its decision based on each partner’s personal and financial needs, earning capacity, tax issues and other relevant financial issues.

The court starts with a presumption that all assets acquired during the marriage are jointly owned–and are thus "marital property." Marital property may include homes or other real-estate properties, investment accounts, interest in a business or professional practice and more.

Assets solely owned by one spouse are considered to be "separate property." Separate property includes assets from prior to the marriage, but it may also include some assets acquired during the marriage that are exclusively the property of one spouse (e.g., an inheritance).

As a general rule, the courts do not reallocate separate property; it stays with its original owner. And because of this, disputes may arise as to whether assets are truly marital or separate property.

How Does Spousal Maintenance Work?

Spousal maintenance–also known as alimony–is money paid by one spouse to the other, to prevent financial suffering. At issue in either a legal separation or divorce, the primary goal of spousal maintenance is to


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allow former spouses to financially sustain themselves, until they can independently provide for their needs. Thus, spousal maintenance usually ends when a receiving spouse reaches a stable financial situation.

Some factors used in determining maintenance include:

•  Length of the marriage

•  Physical residence of children

•  Age and health of the spouses

•  Division of the couple’s assets

•  Career or educational sacrifices made by one spouse for the benefit of the other

•  Tax consequences of the spousal support

•  Any other factor the court deems to be relevant

When Do I Need To Deal With Child Custody And Support?

Immediately. Custody issues aren't something addressed after a divorce; they are at issue from the first moment of separation.

At the core of all child custody determinations is one goal–to provide the child with arrangements that are in the child's best interest.

While the court has guidelines to use during its determination, a judge will take into account the specific situation of every case. (Because there is a certain amount of judicial discretion, it is important to be cooperative with the court during custody proceedings.)

The court will look at many factors before rendering its verdict–especially if there are concerns relating to the mental and physical health of either parent or allegations of domestic abuse.

In the next chapter, we will look at the different ways to get divorced in New York, as well as which method might be best for you and your children.


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The Three Ways to Get Divorced In New York

Parents contemplating divorce may have visions of contentious court appearances, stubborn spouses and emotionally-injured children. Yes, all this is possible, but none of it is inevitable. Much depends on the willingness of each party to compromise and do what’s best for the children. Therefore, New York parents thinking about getting a divorce should know that there are essentially three options available to them.

Mediation

An alternative to court, mediation is a proceeding where a neutral party (known as a mediator) guides a couple through the divorce process. The mediator helps the couple find compromise and agreement on the outstanding issues of their divorce. A mediator is not required to be a lawyer, and couples should know that the mediator they choose definitely isn’t their lawyer. A mediator’s job is to remain neutral, while a spouse’s lawyer is an advocate who wants a settlement that is best for his client.

Mediation has several advantages, not least of which is the avoidance of a messy litigation process. Mediation can be less expensive and faster than litigation. If you’re on cordial relations with your spouse, and you feel safe in assuming there won’t be contentious fights over the children or assets, then mediation might be a good option.

On the other hand, if you and your spouse can’t agree on a variety of issues, then mediation can prolong an already difficult process that may still result in litigation.

One concern in mediation: Do you have all of the relevant financial and other information? Because mediation is voluntary, so, too, is the


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evidence that's provided. Therefore, there is a possibility that you might not learn about all of the relevant assets when making your decisions.

Finally, mediation depends heavily on the quality of the mediator. A poorly equipped mediator might draft a lopsided or legally-unsound settlement. Therefore, it's best to always have a lawyer representing you.

Collaborative

In a collaborative divorce, each spouse chooses a collaborative divorce lawyer to negotiate the issues of the divorce; then the lawyers work out the agreement. To do so, they may call on outside experts–such as financial experts and child specialists–to assist during the deliberations.

The benefits of a collaborative divorce are akin to mediation. It can be cheaper and quicker. It also saves you and the children from the rigors of a contentious and prolonged court battle.

Why would one choose collaborative divorce over mediation? Mostly to avoid the potential hazards of a mediator mentioned above. Some couples would rather trust the settlement in the hands of experienced lawyers.

The wrinkle in this process is that, if negotiations fail and the couple reaches an impasse, then both lawyers must withdraw. That usually means starting from Square One, with a new lawyer and probably litigation.

We should note that whether you’re considering mediation or a collaborative divorce, both options work best when the decision to divorce is mutual: They rely heavily on the cooperation and goodwill of each spouse.

However, if you have animosity towards your spouse, if there's a history of abuse, or you feel strongly about limiting your children’s time with your spouse, then these choices are less likely to lead to an effective resolution.


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Litigation

Mediation and collaboration are voluntary procedures, and the result is a legal contract that both parties agree to. In litigation, a judge makes the decisions, and the result is a court decree, and its terms are imposed on each spouse–even if against their will.

Litigation has a bad reputation for all the obvious reasons. No one wants a court battle, and the outcome might not be in your favor. Still, it’s the most common type of divorce, despite its many drawbacks. The reason is because most divorces aren’t mutual; one spouse isn’t ready to end the marriage, give up assets or lose his children.

You shouldn’t avoid litigation just because you want to stay out of court. Particularly in a case where your spouse doesn’t want a divorce, litigation may be the only way to get what you and your children deserve.

But even litigation doesn’t always mean you’ll end up in court.

Many litigated divorces never reach the courtroom, because both parties still come to a voluntary agreement. Obviously, this is the preferred outcome, and a good divorce lawyer will usually do what she can to reach a settlement.

Sometimes, just threat of the lawsuit is enough to make a stubborn spouse come to terms during negotiations.

What’s Best for Your Family

When it comes to choosing the right divorce option, there isn’t a one-size-fits-all. Your decision should depend on your unique circumstances:

•  Is the decision to divorce mutual or one-sided?

•  Do you want to maintain a long-term relationship with your spouse, or do you just want out?

•  Does your spouse have a history of deceit or abuse?


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•  Is money or privacy a concern?

Weigh these questions carefully, and when you’re ready, speak to an experienced divorce lawyer. No matter which path you are considering, discussing your options with an attorney can help you decide which is best for you and your children.


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What to Know About Child Custody and Support

Parents thinking about divorce are often confused about the child custody and support process. Maybe you wonder if your future ex-spouse will provide the financial support you will need to raise your children. Perhaps you or your children have been the victims of domestic abuse. Or you fear losing custody of your children during court proceedings.

Whatever your concerns, before you begin the divorce process, it would be useful to acquaint yourself with child custody and support process, so you can prepare for it accordingly.

Who Will Get Custody?

Probably the biggest concern divorcing parents face is the question of custody over their children. The easiest way to resolve the matter is to come to an agreement with your spouse. Assuming all parties agree, then custodial plans will be part of the divorce settlement. If divorcing parents can’t reach an agreement over child custody, or there is a cause for concern (e.g., when there is an abusive parent), then the court will determine custody of the child.

To rule on custody, a court will decide based on the “best interest” of the child. There isn’t a specific legal definition for “best interest.” Instead, the court considers a host of factors including: a child’s wishes; fitness of one parent over the other to care for the child; abuse allegations; and parental drug or alcohol addiction.

In New York, the “child's health and safety shall be the paramount concerns” when making a decision.

What Types Of Child Custody Are There?


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There are four types of child custody that affect physical (i.e., residential) custody of the child and parenting of the child (i.e., who can make decisions for the child):

1.  Sole legal: One parent has the power to make all the major decisions involving the child without the need for consent from the other parent.

2.  Primary physical: One parent has more than 50% of the physical custodial time with a child. This also includes cases of sole custody, where one parent has custody of the child nearly 100% of the time.

3.  Joint legal custody: Parents must consult and agree on all major decisions involving the child.

4.  Joint/shared physical: Parents share physical custody of the child, usually with an equal split, with the child splitting half of the time with one parent and half with the other.

What Is The Difference Between Custody And Visitation?

Except in extreme cases, when a judge grants one parent sole custody, the court will still usually grant visitation rights to the other. Custody and visitation rights are separate legal decisions, although the court will often decide them at the same time.

Visitation rights also aren’t solely for a parent. Grandparents, siblings and other relatives can also request visitation rights (although a court often will decide these requests outside of the divorce itself).

A court will often allow parents to set a visitation schedule. If the parents can’t arrive at a decision, the court will usually allow the custodial parent to decide the schedule. However, if the custodial parent’s visitation schedule is unfair or unreasonable, then the judge might step in.


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Can Child Custody And Support Be Decided During A Separation?

Yes. Parents can come to a decision regarding child custody and support during negotiations of the separation agreement. They can then include these decisions in the divorce decree, but a parent can still attempt to change the arrangement during the divorce case.

How Is Child Support Determined?

New York law states that the noncustodial parent must pay child support to the custodial parent until the child reaches 21. The non-custodial parent is the one who has less than 50% of physical custodial time with the child.

When the parents equally split custodial time, the law states that the parent with the higher income is the non-custodial parent.

The amount of child support paid to the custodial parent is essentially based on a percentage of the non-custodial parent’s gross income after deductions for FICA withholdings. In New York, child support payments would be 17% of the adjusted income for 1 child; 25% for 2 children; 29% for 3 children; 31% for 4 children, and no less than 35% for 5 or more children.

What If The Parent Doesn’t Pay Child Support?

Failing to pay child support is a serious matter. In New York, if a parent is paying through payroll deduction, the county will first contact the non-custodial parent to inform him or her that he/she is in arrears. If the parent still fails to pay, the agency has the power to retrieve the money from tax refunds and bank accounts. The agency can also notify credit agencies and suspend the non-custodial parent’s driver’s license. In extreme cases, a court can sentence the parent to jail. In cases where there is a direct payment, the custodial parent may need to file an enforcement/violation petition to address the arrears.


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If the non-custodial parent moves out of state, the child support enforcement unit will work with the other states' authorities to perform these actions.

Can The Amount Of Child Support Change?

Yes. Changes in the cost of living and the amount the non-custodial parents earns can alter child support payments. Every two years, the child support enforcement agency will review your case to determine if the amount should be changed. While the agency has the power to make these adjustments without going to court, a non-custodial parent can challenge these changes.


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Your Options When Dealing With A Harassing Spouse or Ex-Spouse

Given the mental and physical toll of divorce, it is not unusual for one parent to start harassing the other (or even the children) over parenting decisions, child custody, child support or visitation. In these cases, the non-harassing parent might decide that the divorce settlement needs to be changed. This can be done, but there are steps you can take while the legal process works itself out.

What Is Harassment?

Harassment can come in many forms, from verbal abuse to physical violence to stalking. Some of these acts are clearly illegal, while others might be illegal, such as verbal threats.

However, other types of harassment–such as bad-mouthing you to the children or spreading rumors to friends–aren’t necessarily illegal, but that doesn’t make them any less hurtful. And they still may be addressed: They could even violate the custody agreement.

If you are concerned about physical injury or other danger, contact the authorities and your counsel. For other issues, consider talking to the police or your lawyer, to determine what actions you may be able to take.

Is The Harassment Abusive?

Again, in cases of physical abuse, you should contact the police and your attorney. They will be able to inform the appropriate agencies, such as child protective services, to help you remove children from a dangerous environment. A court may also issue a restraining order on the abusive parent or, in some cases, convict him or her of a crime.


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Once you're not in immediate harm's way, realize that domestic abuse is usually a sign of the perpetrator's deeper emotional and mental problems. Much like addiction, abuse is unlikely to stop without professional help. Trying to talk to your spouse as a way of ending the abuse is unlikely to work. The better–and far more effective–option is to contact the authorities and seek professional help.

Some parents understandably want to maintain a relationship with the abusive parent and any children. But you must remember that an abuser needs help before any relationship can function. Your first priority must be to protect yourself and your children.

What Can You Do In Cases Of Legal, Non-abusive Harassment?

For minor incidents, you might try talking to your ex. There’s a possibility that he or she might not be considering the true effects of his/her actions. Once informed, your ex might change his/her ways.

If the harassment is focused on you, establish firmer modes of communication. For example, you can tell your ex-spouse that you will only communicate over email, which will provide a permanent record of your exchanges (evidence that you might need in court).

If a spouse is using the children as tools of harassment, you can write a list of subjects that you don’t wish him/her to discuss with the children.

If the harassment doesn’t cease, or if it is potentially illegal, then you should speak with an attorney.

Should You Retaliate?

It's only natural. If your spouse or ex-spouse if bad-mouths you to the children, then you may want to retaliate and bad-mouth him/her in return.


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If he/she is spreading rumors, you might want to do the same. Resist these urges. Retaliation is unlikely to stop the harassment on his end; rather, it will probably lead to greater harassment. And your retaliation can also work against you if the problem reaches the court: You'll share culpability.

Instead, try to keep a record of the harassment incidents. Include the day and time the event occurred, the content of your complaint, names of any witnesses and so forth. If the harassment is coming from emails or texts, you should save these.

Are There Legal Options To Stop Harassment?

If the harassment continues, there are several options open to you.

First, you can file a criminal complaint against your spouse or ex. The criminal court will often issue an order of protection which will require your spouse or ex to refrain from harassing behaviors. In more serious circumstances the court can order your spouse or ex to completely stay away from you and the children.

Second, you can also opt to file a family offense petition in family court. The family court has the same power as the criminal court to issue both temporary and/or permanent orders of protection (both “refrain from and stay away”).

If your spouse or ex fails to obey or follow an order of protection either temporary or permanent, he or she may be subject to criminal charges as well as penalties for civil or criminal contempt.


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Combating Allegations of Parental Alienation, Abuse or Other Wrongdoing

All too often, children find themselves caught in the “no-man’s-land” of their parents’ divorce. What I mean by that is that divorcing parents sometimes lose sight of the fact that criticisms of each other in front of the child can lead to serious consequences. In the worst cases, one parent can criticize a former spouse so frequently, and in such a visceral way, that the child no longer wishes to have a relationship with the targeted parent.

Quite reasonably, courts disapprove of this type of behavior. A parent accused of turning a child against the other parent could lose custody rights. Which is why it’s not uncommon for one parent accuse another of "parental alienation" along with other wrongdoing. In such cases, the accused parent must combat these allegations in court or risk losing custody. Here’s what you should know if you are falsely accused.

What is Parental Alienation?

In a Psychology Today article, Edward Kruk defines parental alienation thus:

Parental alienation involves the “programming” of a child by one parent to denigrate the other “targeted” parent, in an effort to undermine and interfere with the child's relationship with that parent, and is often a sign of a parent’s inability to separate from the couple conflict and focus on the needs of the child. Such denigration results in the child’s emotional rejection of the targeted parent, and the loss of a capable and loving parent from the life of the child.

Research has found that parental alienation can lead to harmful


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https://www.psychologytoday.com/blog/co-parenting-after-divorce/201304/the-impact-parental-alienation-children

psychological effects in children, such as low self-esteem, depression and substance abuse. Therefore, parental alienation is considered akin to a form of emotional child abuse, and any allegations of it can radically affect the outcome of a divorce case. For example, a court can alter custody agreements or forbid contact with the child altogether.

What Happens If You Are Falsely Accused?

A divorce court will take abuse accusations of any kind very seriously. Unfortunately, this seriousness is also why some parents choose to make false accusations against their spouse. Abuse accusations become a tactic to receive a more favorable settlement in the divorce proceedings. Sometimes the mere threat of an accusation, given the legal and social implications, may cause parents to give up more in the divorce proceedings.

If the accuser moves ahead with the allegation, he will likely seek an order of protection from a court. Also known as a restraining order in some states, in New York, an order of protection is a legally-mandated court order that prohibits one party from some form of contact with the accuser. So potentially, an order could prohibit a parent from having any contact with a child–from electronic to in-person.

In New York, there are two types of orders of protection. The first, called a temporary ex parte order, usually lasts until a full court hearing. Unfortunately for those falsely accused, a judge doesn’t need to see counterevidence to impose a temporary ex parte. Instead, the judge can determine–based solely on evidence presented by the accuser–if there is “good reason” for the temporary order.

For a final order of protection, there is a full hearing. Both sides have an opportunity to present evidence, witnesses and experts; then the judge decides whether to impose a more long-lasting order. This order can last up to five years—or longer, depending on the severity of the abuse allegations and the strength of the supporting evidence.


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How To Combat False Allegations

There is no question that being falsely accused of abuse is a terrible ordeal. But you should not take such accusations lightly nor attempt to solve the dispute with your spouse on your own. Instead, you should prepare to combat the allegations in court—a costly and time-consuming affair that will also be emotionally draining.

If accused, you should immediately speak with an experienced attorney who will help guide you through the forthcoming investigation. You will want to defend against the allegations by bringing forward witnesses, experts and other evidence.

Sometimes, a client falsely accused of abuse believes that the mere lack of evidence will be enough to overcome the charges. But you shouldn’t underestimate the sort of evidence an accuser can muster against you: Communications (email, texts or social media posts) can be taken out of context. A fierce argument when you lost your temper, testimony from relatives and friends of the accuser–there are any number of occurrences that your spouse’s attorney can spin in his or her favor. Also, realize that the children are at risk of being coached or alienated against you.

No matter how outlandish the allegations being made, remember that it is vitally important to abide by all court orders during the investigation. Even if a temporary ex parte prohibits you from seeing your children, you will only harm your case–and provide ammunition to your accuser–if you violate the order.

Lastly, keep your composure, and avoid actions that could be used against you. These actions include: speaking badly about your spouse in front of the children or others; confronting your spouse; or trying to defend yourself on social media and other electronic communications. If you are in doubt whether an action could be used against you, speak with a qualified divorce attorney, who will be able to advise you.


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How Does Divorce Affect Small Children—And What Can You Do About It?

A 2017 study from Carnegie Mellon University found an interesting long-term effect on children of divorced parents. According to the study, which was published in the Proceedings of the National Academy of Sciences, children of divorced parents are more likely to catch colds as adults.

At first sight, the scientific value of this discovery seems rather minimal. Yet, as the authors explain, not all adult children of divorced or separated parents are more susceptible to the common cold. Rather: “Adults whose parents separated and did not speak to each other during childhood were more than three times as likely to develop a cold following viral exposure.”

In other words, the circumstances surrounding the divorce and its aftermath have been found to be more important than the separation itself. The reason to mention this nuance here is because the scientific consensus on the emotional, psychological and physical effects of divorce on small children is grim, but not all bad. As we’ll see, how a child responds to divorce depends heavily on how the parents respond. Let’s look first at what the science says.

Emotional Effects

Scientific studies mostly have found that small children whose parents have divorced experience feelings of guilt, anxiety and low-esteem immediately following the separation. Writing in Psychology Today, Carl Pickhardt, PhD., says that for young children, divorce tends to intensify the child’s dependency on one of the parents, compared to an adolescent child who will turn away from the parents. “There can be separation anxieties, crying at bed times, breaking toilet training, bed-wetting, clinging, whining, tantrums, and temporary loss of established self-care skills, all of which can compel parental attention,” he writes.


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http://www.pnas.org/content/114/25/6515.abstract

https://www.psychologytoday.com/blog/surviving-your-childs-adolescence/201112/the-impact-divorce-young-children-and-adolescents

At the same time, a 2014 analysis of several studies also found that “that many of the child problems typically associated with divorce are present years before the divorce occurs…Thus, many of the negative outcomes attributed to divorce in cross-sectional studies appear to be due to troubled family relationships (e.g., high levels of marital conflict or ineffective parenting) that precede marital disruption rather than to separation itself.”

Academic Effects

A 2011 study from the American Sociological Review followed 3,500 children of divorced parents between kindergarten and fifth grade (roughly, ages 5 to 10). The study found that the children experienced setbacks in certain academic fields, such as math, compared to their peers whose parents were married. However, the divorce didn’t seem to affect the children in other areas, like reading.

An older study from 1991 found that children of divorced parents showed “significant performance deficits in academic achievement,” and that “parental divorce can be a critical event in the academic development of children.” However, over time, the researchers discovered that a majority of children of divorced parents exhibited academic careers “not unlike that” of non-divorced students.

Long-Term Effects?

While divorce will affect a child of any age in negative ways, studies have found that, at least with younger children, many “bounce back” relatively quickly. A 2013 Scientific American article reported on research that has shown that while many children experience immediate feelings of anger, anxiety, and disbelief, “these reactions typically diminish or disappear by the end of the second year.”

A different study that followed children through childhood, adolescents and their teenage years also found that the negative effects on academic


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http://onlinelibrary.wiley.com/wol1/doi/10.1111/jomf.12100/full

https://www.ncbi.nlm.nih.gov/pubmed/1946827

https://www.scientificamerican.com/article/is-divorce-bad-for-children/

performance, behavioral problems and social relationships that appeared immediately after the divorce seemed to improve with time. “On average, the studies found only very small differences on all these measures between children of divorced parents and those from intact families,” reports SA.

The Parents’ Role

University of Virginia Professor Robert E. Emery, author of several books, including “The Truth About Children and Divorce”, says this: “the great majority of children whose parents divorce do not develop … serious behavioral or emotional problems.” The key, he says, is that parents play the most important role in whether their child(ren) will experience long-lasting effects from the divorce. As the study on the prevalence among adult children of divorced parents catching the common cold indicates, the defining factor isn’t the divorce itself, but how the parents handled the divorce in front of them.

Parents should avoid conflict in front of the children, who otherwise might view arguing or violence as their fault. Parents should also encourage the children to maintain a close connection with the other, as opposed to bad-mouthing each other in front of the children.

This isn’t to suggest that divorcing parents should avoid confronting hard truths about the permanence of the divorce with their child(ren). In fact, Pickhardt writes that “parents who put in a joint presence at special family celebrations and holiday events to recreate family closeness for the child only feed the child's fantasy [of reunification] and delay his adjustment.”

While we must acknowledge the short-term negative effects of divorce on small children, we should also remember that they are neither inevitable nor permanent. Divorce is a painful experience for the entire family, but often it is the right choice for everyone.


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Moving On: An Etiquette Guide for Newly Divorced Parents

“Compromise is the best and cheapest lawyer.”—Robert Louis Stevenson

When two parents are in the middle of a separation or divorce, the last thing on their mind is compromise. Often, hard feelings and bitterness have poisoned an already broken relationship, and neither party is in the mood to make life easier on the other. But as a divorce attorney, I have seen the power of compromise—not just across the negotiation table or in court, but also in the day-to-day life after divorce. That’s right: Life goes on after a divorce and it is in your (and your children’s) best interest to rise above feelings of anger or resentment. With that in mind, here are some areas in which compromise and good old-fashioned manners with your ex are the wiser choices.

Separate Lives, Shared Interests

Before getting to the basic etiquette suggestions, a rule of thumb should guide all of your actions: You now live a life separate from your ex, but you maintain shared interests. Studies have shown that divorced parents who try to maintain a union in front of their young children end up confusing them more than helping. For example, spending holidays or family vacations together tend to give the children a false sense of hope that one day you and your ex will reunite. Instead of accepting the new situation, young children will often cling to the fantasy. But eventually, the fantasy will end, causing the children to go through another round of emotional turmoil.

Which is why you and your ex-spouse should learn to live separate lives as quickly as possible. This physical separation will likely be harder on one parent more than the other, but it’s important to remember that, like the children, the longer it takes to make a clean break, the worse it will be.


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https://www.scientificamerican.com/article/is-divorce-bad-for-children/

At the same time, as parents, you and your ex will likely always be in each other’s lives, because of your children. This shared interest should be the cornerstone of how you interact with your ex after the divorce, and whatever lingering connections you might have with that part of your world which is no longer bound to you by law.

You and your ex should compile a list of issues and topics related to your children that require input from both of you. For example:

•  Education: Speaking with teachers, choice of schools, etc.

•  Activities: What sort of activities your children will be allowed to do.

•  Technology: When will your children be able to have a cell phone, an email or Facebook account, etc.

•  Health: The most important of these “shared interests.” Routine doctor visits naturally will fall on the custodial parent, but any decisions regarding larger health concerns should involve both parents.

Put the Children First

Whenever you have feelings of anger or resentment against your ex, think of your children before lashing out. Badmouthing an ex in front of your children is all too common, particularly if your ex deserves badmouthing! But put yourself in your children’s shoes: Is it better for them to hate your ex or to have a parent?

Also, don’t let your feelings about your ex affect your legal obligations. If you are court ordered to pay child support, do so. Falling behind on payments could lead you right back in court, which is where you don’t want to be.

Otherwise, stick to all court-ordered visitation times. No matter if you’re the custodial parent or not, you shouldn’t be the parent who picks up the children early or drops them off late. Respect your ex’s time with the


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children and stay strictly within the bounds of your time with them. If your ex is the one who is abusing visitation rights, talk to your lawyer, rather than confront them directly. Again, you should walk a fine line of separation with your ex: As easy as it might seem to contact your ex about his or her visitation failures, you should allow a mediator, preferably a lawyer, to handle those legal matters.

Don’t Sweat the Small Stuff

Of course, not all your complaints or concerns with your ex will involve court-ordered mandates. Sometimes you might dislike how much time your children spend with your ex’s ne’er-do-well brother. If there are legal reasons to be concerned—the brother is a drug addict, criminal, etc.—then contact your lawyer. If you just don’t like that he takes your children to monster-truck rallies, then ask yourself if it’s something that requires greater escalation.

The point is that as a big part of accepting your new, separate lives, you and your ex will need to pick your battles. What you’ll likely find is that the same things that annoyed you during the marriage—your brother-in-law, for instance—will continue to annoy you after the marriage. But you should also recognize that some of your family members or interests annoy your ex just as much. How would you feel if she wanted you to avoid bringing the children to your parent’s house?

Fight the battles that are worth fighting, but leave the small stuff alone.

Compromise Where Possible

In some instances of disagreement with your ex, the only recourse is through a lawyer. But otherwise, you and your ex will need to resolve matters on your own. As a divorce lawyer, I’ve often seen small problems become huge legal issues, because the ex-spouses couldn’t compromise with each other. While it’s easy to let your emotions dictate your actions, often that’s not the best for you or your children.


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How to Pick the Right Divorce Lawyer

Going through a divorce is never easy, but it can be a lot worse without the right lawyer by your side. For many people, a divorce is their first real experience with the law, which can be frightening a prospect. Sometimes the very thought of sitting in a courtroom—your spouse on one side of the room, the judge sitting up high before you—is enough to scare people into staying in their marriage. Besides, who wants to deal with lawyers if you don’t have to…?

What you should understand is that a good divorce lawyer should be in every respect your advocate. Put another way, a divorce lawyer’s job isn’t to get the most money for the client; it’s to help the client get what they want and deserve. While that usually involves money, it doesn’t always—and the right divorce attorney for you should be able to appreciate the difference between a happy client and a fat paycheck.

So let’s go through some things to look for in a divorce lawyer.

Family Law Experience

In this series of posts, we’ve been primarily focused on divorcing parents of younger children. There are lots of excellent, experienced divorce attorneys in New York, but they might not be the right fit for you because they lack family-law experience. As a parent, your primary concern is that your children are taken care of after the divorce is finalized. What you might not realize is that child custody and support, while often combined with divorce law, comprise a separate legal field, known as family law. When looking for a divorce attorney, look for one also has extensive family-law experience.

Compromise Over Confrontation

Movies and the media have distorted the public’s perception of the legal profession by focusing on lawyers who do all their work inside a


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courtroom. While divorce cases often end up in court, that shouldn’t be the goal of your divorce attorney. Where possible, your attorney should work toward compromise with your spouse’s attorney on as many issues as possible. This means that you should look for an attorney who is personable, relatable and focused on doing what’s fair. Again, the goal isn’t about making your ex “pay”; it’s about leaving the divorce with what you want and deserve.

Shares Your Goals

What you can get and what you want aren’t always the same, and your attorney should focus on your wishes, not what he can get for you. Which is why you should always speak with a lawyer face-to-face before hiring him. During this meeting, be sure to discuss the following topics:

What do you want to get out of the divorce?

What won’t you compromise on?

Do you want to avoid court at all costs?

By talking through these questions with an attorney, you will see quickly whether he shares your goals or not.

Trustworthy

Another reason you should always speak with a lawyer face-to-face before hiring him or her is that you want to know if you get along. Let’s face it: some personalities don’t just mix, and a divorce is too contentious an experience to have the wrong person by your side. Unfortunately, there’s no rule of thumb here except to say that you should choose someone you trust. Some questions to ask yourself during the interview: Does this attorney understand your situation? Has he or she worked with similar clients? Do you feel comfortable around him/her?

If you leave the meeting feeling better about the divorce, then that’s a


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good sign. But, ultimately, determining whether someone is trustworthy is a personal decision.

Don’t Continue with a Bad Choice

Even after you’ve done your due diligence and hired the most appropriate lawyer for you, you might later conclude that the relationship just isn’t working. If you get this feeling, it’s best to talk with your lawyer about it. See if there is a way to mend the division. But if not, then you should find another lawyer. Be forewarned, though: Like all legal proceedings, divorce cases have deadlines and other strict requirements that will need to be met. It’s not uncommon to change attorneys mid-stream, but make sure you understand the ramifications that might come from switching.


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What Makes the Colwell Law Group Different?

There is no shortage of divorce lawyers in the state of New York. A simple Google search will return thousands of names and firms, but little by way of helping you decide which one is best for you. Yet, as we’ve seen, choosing the right lawyer to manage your divorce is probably one of the most important decisions you will make during this ordeal. In our last chapter, we looked at how you should go about choosing the right lawyer for you and your unique circumstances. With that in mind, allow us to tell you a little bit more about what makes the Colwell Law Group different from all the rest of the firms in the Google search.

A Husband-Wife Team on Your Side

Kevin and Mary Colwell have been practicing together since Mary joined the firm in 2008. We like to think that we bring a bit of our own experiences as husband and wife into every client we serve. We especially appreciate the emotions--particularly as they relate to the children--involved in any divorce case. We and the legal team we have assembled at the Colwell Law Group know the hardships and difficulties that have brought you into our office, and we understand that your primary concern is get through this process without many more. Our first concern is to make sure you and your children are well cared for, and all our efforts will be put toward that end.

A Focus on Divorce and Family Law

Since 2005, the Colwell Law Group has focused mainly on matrimonial and family law issues. Which is why we know that one of the only things you and your former spouse may agree on is the importance of your children’s wellbeing. However, discussions and battles over child support agreements can cause one or both parties to quickly lose sight of what is


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most important: the child. Our attorneys are here to help you understand and exercise your rights while fighting for the best interest of your children. Our experience with family law matters means you can count on us to represent you through every stage of your divorce. With the Colwell Law Group, you get the right experience with a legal team that cares about your goals.

Constant Communication

One of the reasons we wrote this book was because we found ourselves answering the same questions and concerns from our clients. We felt it best to compile the most pertinent and asked-about issues in one place as a resource for your benefit—whether you choose the Colwell Law Group or not.

But we also know that every divorce case is unique. After reading the material in this book you likely still have questions and concerns. Which is why we emphasize constant communication at the Colwell Law Group. When you’re our client, you aren’t just a number. You’re a real person whose divorce is likely one of the toughest things you’ll go through in your life. We strive to return your phone calls within a 24-hour period. We will not work on your case behind closed doors, nor keep any information from you.

Client Testimonials

We know that at the end of the day, results matter. Here are some testimonials from former clients, who provided a brief synopsis of their experience with the Colwell Law Group.

Steve says:

“I retained Kevin Colwell during what was for me, the worst period of my life to date. We started on what should have been a simple custody petition that instead turned into a chaotic mess. Kevin and his staff were able to adjust to the ever changing challenges we faced with superb competency and


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effectiveness. Kevin and his staff guided me through some dangerous and complicated legal waters, and saw to it that I came out a whole person. Today my children enjoy equal time with both of their parents, and I owe so much of that to Kevin’s advice and direction. Kevin and his staff will be a voice of reason and honesty for you when you are faced with anything and everything but reason and honesty. I highly recommend Kevin Colwell.”

Roger writes:

“Mary Colwell was recommended through a friend who had recently just gone through a divorce. When we met for our first consultation, I was amazed how efficient, sympathetic and realistic she was dealing with my initial situation and separation. From there she efficiently guided me through the divorce procedure. I just received my final papers recently, and on reflection, realized that my divorce process, though difficult, was handled extremely professionally and with care.”

Alan says:

“When I first became separated, I hired a pit bull attorney so I could get back at my ex, who had wronged me. Unfortunately, the pit bull was a pit bull alright, only to me and not my ex. My first attorney did nothing more than receive and forward me countless letters from opposing counsel, racking up thousands of dollars and never actually doing any meaningful work on my case. Nine months, $9,000 dollars later and nowhere closer to divorce, I fired my ex-attorney and hired Kevin Colwell. It was a very good decision. Kevin and his firm provided me with professional services at a reasonable price. Kevin did not forward me every letter as my previous, unscrupulous attorney had, but rather, only contacted me when there was something important. Kevin could have made himself thousands of dollars more by simply forwarding me the letters from opposing counsel, which were intended to break me mentally and financially. Instead, Kevin recognized this and saved me money. Not every attorney would do that.”

And Phil writes:


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“Mary was sensitive and helpful in guiding me through a mediated separation and subsequent divorce. She kept me informed throughout the process and attended to the details well, without running up her billable hours unnecessarily. She brought issues to mind that I would not have anticipated before the mediation process so that I was prepared for them. Although I came armed with a list of questions and issues, she dealt with them all before I even needed to ask. Both personable and highly professional, it was a pleasure working with her and she helped make the difficult and unpleasant process of separation and divorce a little easier and less unpleasant.”


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Moving Forward: The Questions Still to be Answered

By now, we hope many of your questions and concerns about the divorce process have been answered. Moreover, we hope that you feel better about the effects a divorce might have on your children. We know that the concerns you have for your children will never be entirely removed, but you should find comfort that many of those concerns might never materialize. Above all, you should know that this is not a process you must go through alone. At the Colwell Law Group, we have always understood our responsibility to include not only performing our legal duties to the highest level of performance, but also guiding our clients through this difficult time.

Let’s review a bit about what we’ve covered.

The Different Ways to Get Divorced

Divorce can be achieved through several ways. There are three primary options to consider:

Mediation: a divorcing couple works with a mediator who helps them compromise and find agreement on the outstanding issues of their divorce.

Collaborative: similar to mediation, each spouse chooses a collaborative divorce lawyer who will negotiate the issues of the divorce.

Litigation: although the most common option, litigation doesn’t always lead to a courtroom, and a good lawyer will seek to avoid that possibility.

Questions of Custody

Although technically a different area of law—family law—child custody is


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often determined alongside the main divorce matters. For this reason, it is important to have a lawyer or law firm who is as experienced in family law as he is in divorce law. Nevertheless, it is best for both parents if they can come to an agreement regarding the custody of the children. If not, then a judge will decide the custodial parent, as well as the visitation rights of the other parent, using the “best interests of the child” as the guide.

Unfortunately, there isn’t a set legal definition for “best interest”; rather, it is the result of weighing a host of factors, such as the fitness of one parent over the other to care for the child; the child’s wishes; and whether there is abuse or one parent suffers from drug or alcohol addiction. In New York, the “child's health and safety shall be the paramount concerns” when making a decision.

How Divorce Affects Small Children

Recent research has found that while divorce certainly has a negative effect on small children, this effect isn’t as long-lasting as previously thought. Yet those effects aren’t to be dismissed either. They include feelings of guilt, anxiety and low-esteem immediately following the separation. In addition, older children often have setbacks at school, although this backslide usually disappears after a few years.

The good news is that research has found that the parents themselves –and their actions during and after the divorce—have the greatest effect on children in the long-term. Many of the adverse consequences of divorce can be resolved if the parents are forthright with their children; don’t criticize the other parent; and maintain open communication throughout the divorce process.

How to Manage a Harassing Spouse

Since divorce so often isn’t a mutual decision, one spouse can often become harassing or abusive. Depending on the severity of the


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harassment, you have several legal options open to you. For instance, you can seek a civil injunction that limits physical and verbal (or electronic) interaction with the harassing spouse. If the spouse violates the injunction, then he or she can be found in contempt of court and face severe penalties.

You should avoid retaliation at all costs. The actions of both you and your spouse can be used during the divorce or afterward. It’s best to consult a lawyer in the even that your spouse is harassing or abusing you or the children.

What Now?

Making the choice to get a divorce is never easy. The process before you can be long and difficult, especially when there are children involved. But you’ve come to this point in your marriage for a reason, and likely a divorce is what’s best for you and your children. You shouldn’t continue in a bad marriage just because the prospect of divorce is scary and the future unknown. At the Colwell Law Group, we understand this fear. We want to help you overcome it and move forward with a life that is better than the one you now live. That life is possible, for you and your children—and even your ex-spouse—if you’re ready.

No doubt you still have questions for us. We encourage you to give us a call for a free consultation. Our conversation will be entirely confidential. You can call or text our number at any time and someone will get back you in 24 hours.

We want to thank you for reading our guide to divorce. We wrote it for spouses and parents just like you, so that you have a resource for this difficult moment. It’s the start of a conversation, and we look forward to continuing it with you.


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Disclaimer

Disclaimer for “What’s Best for Your Children? A Guide to Help Parents Going Through a Separation or Divorce?”

You understand that this book is not intended as a substitution for a consultation with an attorney. Requesting this book or viewing the information in it does not create an attorney-client relationship with The Colwell Law Group, LLC or any of its attorneys. To obtain legal advice, please engage the services of The Colwell Law Group, LLC or another law firm of your choice. To discuss engaging The Colwell Law Group, LLC to help you with your matter, please contact the firm.

THE COLWELL LAW GROUP LLC IS PROVIDING “WHAT’S BEST FOR YOUR CHILDREN? A GUIDE TO HELP PARENTS GOING THROUGH A SEPARATION OR DIVORCE?” (HEREAFTER REFERRED TO AS "BOOK") AND ITS CONTENTS ON AN "AS IS" BASIS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THIS BOOK OR ITS CONTENTS. THE COLWELL LAW GROUP LLC DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING FOR EXAMPLE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, IT DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THIS BOOK IS ACCURATE, COMPLETE OR CURRENT.

The book is provided for information purposes only, and relevant laws frequently change. Except as specifically stated in this book, neither The Colwell Law Group, LLC nor any authors, contributors, or other representatives will be liable for damages arising out of or in connection with the use of this book. This is a comprehensive limitation of liability that applies to all damages of any kind, including (without limitation) compensatory; direct, indirect or consequential damages; loss of data, income or profit; loss of or damage to property, and claims of third parties and punitive damages.


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Documents

What’s Best for Your Children? - Child Custody€¦ · What to Know About Child Custody and Support 12 Your Options When Dealing With A Harassing Spouse or Ex-Spouse 16 Combating