GETTING TO YES in Disputes Over Child Custody
When couples separate, the tendency is to “lawyer up” at the outset and let your attorneys do the negotiating. In many aspects this is a sensible approach because most mortals don’t know a lot about divorce economics in terms of how propery and incomes are measured and divided.
Your children are another matter. You and your spouse or partner know more about them than any lawyer or judge will ever learn. You have lived with them from birth, and as parents, you should know their strengths and vulnerabilities. That is not a universal truth. Many parents allow emotions or biases to overwhelm their common sense and that’s when courts have to get involved. But a common refrain heard from many judges at the outset of custody proceedings is this: “I am here to decide this and I will hear the evidence. But I cannot do better by your children than you can if you work together with their needs as your common goal.”
In 1981 Harvard professors Roger Fisher and William Ury wrote a book on negotiation titled “Getting to Yes.” I read it forty years ago because back then, it was clear that litigators are essentially negotiators and negotiation was not part of most law school curricula. The chief takeaway for me was that in almost every adversarial environment there are shared values and/or needs. The authors said a hallmark of good negotiation is to identify those common concerns and see if they can be employed to help create an atomosphere of (dare I write it) TRUST. They added that you often are better off working on smaller agreements and using them to evolve toward consensus on the larger and more contentious topics.
Now to turn back to child custody. Yes, you want, and, of course, deserve primary custody. You are the superior parent, right? But now let’s roll back. What are your real concerns? What values do you share? And what co-parenting have you done together before your relationship came apart? Fisher and Ury might describe this another way which is a bit more painful. What are your weaknesses as a parent or when did you drop the ball? I recall a client who was pretty much a model parent except for the day the four year old got out of the house and was found by the cops an hour later a quarter mile from home. When she told me the story I promised her that her spouse would make an immense deal about this incident and rightly so….but that child custody rarely turned on any one event unless it was intentional or reckless.
Custody litigants often go to bed dreaming that the other parent will be exiled to weekend visits or 2 weeks in the summer. That rarely happens today unless the court is hearing about drugs/alcohol or other signs of chronic instability. Those cases are around but you don’t get sole custody because the other parent didn’t attend the wellness visits or the school conferences. And custody is not only an expensive fight to have but one where people like to appeal or re-file for more court again and again.
Messrs. Fisher & Ury don’t discuss custody negotiations but their methods add value. So let’s pull a couple cards from there deck and see how the bidding works.
- No matter who started the divorce or how, kids are damaged by separation from parents.
- Chances are good that you both love your children and get a lot of emotional support from them. Yes, that goes two ways. Kids often have great sympathy for the “lesser” parent.
- You share a common desire to spend time with your kids and to assure that they are healthy and happy even if you can’t agree on contact sports or parochial school. By the way, while it should be understood that your kids are a priority they needn’t be the only or even the top priority. Plenty of children have gone on to make fortunes and win Nobel prizes without parochial school, cello lessons or designer clothes.
Now for the practical side but on a smaller scale. Should they attend church? How important are “activities” and can you discuss how they impact both time and money. Yes, their grandmother has always trashed you as a parent but once we separate, can we agree that you (the other parent) won’t join in on that? What’s a fair split of the holidays and can we agree that the costume for Halloween is a split cost? In a world where parents have no obligation to fund college, do “we” want to fund it.
If your answer to some of these questions is “Of course” realize you can get much further employing the phrase: “What do you think?” This should first be an informal discussion. Just because a parent says “If I am putting $200 a month toward karate lessons, that pinches my ability to save for college” doesn’t mean the world falls apart. And all too often hard positions beget hard responses.
An easy but painful place to start is social media. Parents are awakening to cyber bullying, extortion and sexual harm that can come to kids before they grasp the danger. Here’s an article you might want to share and “discuss” as parents because most kids think that 8 hours and 39 minutes of daily screen time is “just enough.” Here’s an article on the topic. Four actions to reduce social media risks for your child . Perhaps you can agree on how to shield your own child from this new menace.
And, last but not least, here is the April 7 podcast on NPR’s Hidden Brain discussing how to negotiate a just result. If nothing else, you can use the info to negotiate with your child. Relationships 2.0: Become a Better Negotiator | Hidden Brain Media
