Taking Combat out of Custody

As custody battles intensify, lawyers take on new roles

Tresa Baldas
The National Law Journal
11-30-2005

Divorce lawyers tangled in messy custody disputes should refrain from smashing the other side to bits.

That's the message Andrew Schepard, a Hofstra University School of Law professor, has been preaching to attorneys in recent seminars about high-conflict custody cases, which lawyers and judges identify as a critical problem in the nation's courts.

Custody battles have grown so intense that several jurisdictions across the country, including some in Maryland and Connecticut, are dramatically changing how they handle warring parents.

And in the process, the role of family lawyers is changing as well.

In his seminars, Schepard shows attorneys clips of the 1979 Dustin Hoffman film "Kramer vs. Kramer," stressing that the days of turning parents against each other to get little Billy are over.

It's now about counseling parents and strengthening family ties, said Schepard, who has been helping courts nationwide develop new protocols for dealing with high-conflict custody cases.

And the help is needed.

Attorneys and judges note that high-conflict custody disputes are posing several problems. Since the cases take longer to resolve -- hostile litigants keep turning up in court -- they are tying up courts that are already overstretched. Also, attorneys who handle family law cases assert that the child's best interest is increasingly being threatened.

Lawyers and judges note that several factors are contributing to a rise in high-conflict custody disputes, including: More fathers are contesting custody matters and demanding more time with their children, custody issues are increasingly being used for financial gains, and custody cases are seeing a rise in claims of sexual and physical abuse.

A JUDGE TAKES ACTION

Baltimore County, Md., Circuit Judge John O. Hennegan, who recently sat through one of Schepard's seminars, said that he's become "overwhelmed, saddened, maybe even frustrated," by the growing number of high-conflict custody cases that come through his court.

Now he's doing something about it.

Starting on Dec. 5, the Baltimore County Family Court Division will launch a new, high-conflict case management system that is designed to identify and deal exclusively with high-pressure cases.

It's patterned after a similar, year-old system used in Connecticut, where hostile litigants will be assigned to a single judge who will see the case to conclusion. Most notably, parents and their lawyers will meet with a social worker just before their scheduling conference, during which they can hash it out and release all their hostility.

"The idea is having parents who have lost control of their emotions and the issues of the case regain control for the best interest of the child," Hennegan said.

Family law attorney Craig Little of Kaufman, Ries & Elgin in Towson, Md., who will work under the new system, believes that lawyers play a crucial role in easing conflicts between spouses.

Having sat in one of Schepard's seminars, Little agreed that turning parents against one another doesn't work, particularly in high-conflict cases.

"We'd rather be problem-solvers than problem-creators," said Little, whose own divorce 10 years ago prompted him to go into family law. "I'm a single dad. I've been through the divorce process and the custody process. ... And I think if we do anything as lawyers we have to stay focused on the needs of the child because they're the ones who almost have no voice themselves," Little said.

Family law mediator Amy Blackwood of the Blackwood Law Firm in Little Rock, Ark., recently saw just how desperate children are to have a voice in court.

In August, two children, ages 12 and 14, who were caught in a bitter custody battle, sold some cattle that was a gift from their grandfather for $5,000 and hired Blackwood to take on their case. She said the children had been ordered to live with their father -- allegedly against their will -- while their mother was sent to jail on contempt charges for allegedly refusing to comply with visitation orders.

"They really felt like nobody listened to them," she said. Blackwood ended up dropping their case because there wasn't much she could do. She said that because the children weren't parties to the case, they couldn't call their own witnesses or play a key role in it.

Meanwhile, Blackwood has had her hands full mediating several other high-conflict custody cases. She said that courts and attorneys are increasingly utilizing mediators, who help parents move through anger issues and come up with amicable solutions to take before a judge.

"I get appointed on a ton of cases," said Blackwood, whose workload has doubled in the last two years. "A lot of times attorneys will call up and say, 'We've got a really nasty case. Will you take it?'"

In New York, family law attorney Sari Friedman said she has witnessed a recent trend in which courts are increasingly appointing "parent coordinators" to high-conflict cases. These coordinators meet with the parties regularly to make sure day-to-day routines are running smoothly, like who is picking up the kids from school or what medicine should a child take.

"The newest thing that I've been seeing is the court recognizing that there's a point where they just can't monitor the situation," Friedman said. "There's a certain amount of micromanagement that the court just can't do."

For the last 15 years, Friedman has been actively involved in an advocacy group that helps fathers maximize their time with children in visitation matters. She believes that one of the main reasons that courts are seeing more high-conflict cases is that more fathers are fighting for custody.

"Fathers more than ever before are not just accepting the fact that they have no chance or no role," Friedman said.

EMBRACING NASTINESS

Friedman, meanwhile, disagrees with the concept that lawyers should go easy on opposing spouses in highly contested cases. While it's important to try to cool things down when possible, she said, custody disputes sometimes warrant nasty tactics.

"The point of the matter is there is a certain amount of nastiness that comes out in a custody dispute and there is a certain amount of nastiness that comes out that's necessary," Friedman said. "The main goal in a contested custody situation is to win. It's not to protect the feelings of the other side."

As far as protecting the best interests of the child, she said: "Obviously in an ideal world a child should have two parents that put the needs of the child in front of their own ... but the fact of the matter is we don't live in an ideal world," she said.

Attorney Lisa Jones-Ables knows that all too well. She is currently representing the mother of the two Arkansas children who sold their cattle to pay for an attorney. Linder v. Johnson, No. E 1998 133 (Cleburne Co., Ark., Cir. Ct.).

Jones-Ables believes her case is a classic example of how the courts are failing children caught in high-conflict cases. She is currently fighting for the release of the Arkansas woman who was found in contempt for refusing to comply with visitation orders.

Jones-Ables recently asked the Arkansas Supreme Court to declare the sentence invalid, arguing that the mother was denied due process, and she is seeking her release pending an appeal. She claims the children want to be with their mother.

"It just started out bad. It's been bad. And it ended very badly," Jones-Ables said.

COORDINATORS A 'CRUTCH'?

Family law attorney Brian Schwartz of Seconi & Cheifetz in Summit, N.J., believes that courts are relying too heavily on outside sources, particularly parent coordinators, to handle high-conflict cases.

He said parent coordinators, while helpful in some circumstances, have too much power that can be used to intimidate children or parents into agreeing to their recommendations.

"I think they're becoming too popular. Judges are dealing with them as a crutch," Schwartz said of parent coordinators. "They have a tremendous amount of power because the judges don't want to deal with these people."

As for his role in reducing conflict in tense cases, Schwartz said he works closely with parents in trying to come up with creative visitation schedules. Many of his clients are fathers who work long hours but want an active role in their children's lives.

"Dads want more time. They're not happy with the Friday-to-Saturday and the Sunday dinner anymore," said Schwartz, who is continually looking for creative ways to avoid a trial.

"Most of your better lawyers are trying to convince people not to have a custody trial," Schwartz said.

"With every custody case you lose a little bit of yourself."

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