With 30+ years of legal experience, Gary T. Soule is an attorney in Clayton who focuses his practice on all aspects of family law, including mediation and collaborative law. He can be reached at 721-8844.
(Nancy’s statements and questions in italics.)
And these cases do not just concern the parents. They also have a significant effect and consequences on the children, extended family and friends. In other words, relationships that will continue long after the legal proceeding is over. This is about taking the long view. There is an interesting thought and we’ll explore that a little bit more. Not surprisingly, there are many shades of gray in family law cases. The parties are well served to focus on preventing what I refer to as collateral damage. Keep in mind that the parties are on an emotional rollercoaster. Attorneys representing clients in child custody cases have the opportunity to challenge the parties to produce what is the best or right result for their family. The judge is somewhat hamstrung if the parties cannot agree on the most appropriate parenting plan for their family. Then the judge must strictly follow the law. Remembering that all problems are mutual, the challenge for us as attorneys is to offer to clients self-determination, another interesting concept in this area of the law. By engaging in creative thinking, clients, with the guidance of their attorneys, and other professionals, if necessary, can devise offers the other side cannot refuse. The parties must look at their choices or options and the likely consequences of each choice for each party and others involved.
We are talking about grandparents, aunts and uncles, cousins.
Yes, again extended family and friends. You know it is not surprising if we look at our own personal situations of the relationship that we as children had and have with other people beyond our parents, and the same thing being true of our children or friend’s children or relative’s children. In this entire process, Nancy, communication is paramount.
Okay.
The communication skills of the parties are critical to whatever result is achieved. Listening to find out what each party really wants is critical. One of the most important lessons that I learned several years ago, and it totally transformed my relationship within my concept of communication, is that the power in communication is really all in the listening, and your ability as the listener to listen in a powerful way for what the other person is saying, not only the exact words that come out of her or his mouth, rather what’s really behind those words. What’s the deepest intention of the speaker, really the highest intention of the speaker. You know growing up and always wanting to be a lawyer and being trained as a lawyer and thinking that I communicated pretty well, I always thought the heart and soul of communication was in speaking, my speaking, and like, you know, a conversation or a discussion was never over or never complete unless and until I had the last word. Not necessarily so and really not a very good approach to effective (1) communications and (2) problem solving. Now, along those same lines I would submit that language is of utmost importance. The parties can be challenged by their attorneys to go with their hopes rather than their fears. What an interesting idea. Again, remember this emotional rollercoaster that these folks are on, and it is not unusual or surprising that when we are under all of this stress that what immediately comes to the surface is our fears. If we are driven by our decision-making through the prism of our fears, we are going to produce a totally different result than if the filter were approaching this problem-solving exercise is through one’s hopes.
It sounds like if the attorneys involved and the parties involved can hear those messages that it wouldn’t be so difficult to figure out what the best thing to do is. Everybody has a need.
Yes.
You know, and everyone has to have at least some of their needs met or they are not going to feel happy or satisfied, but the idea of this is what I hope rather than I am afraid I won’t get to, I am afraid I can’t, it just changes the whole viewpoint, I think.
No question. It changes the entire dynamics of the interaction between the parties, and along those very same lines, in part, our job as attorneys is to remove obstacles in the way of the parties reaching an agreement and assisting the parties to focus on solutions. Now, as attorneys, we assist the parties in gathering information and through that information gathering process allow the parties to identify for themselves their objectives and their interests. What I am looking for is at the end of the day an agreement and a result that will last, not just getting the deal or getting an order. There is no single formula for parent/child contact which fits all situations. I think that that is very important and noteworthy.
Another place where folks can run into problems in the area of child custody is the misuse, or the inaccurate use of language, in particular, certain terms. For example, joint custody which again the misrepresentation or the inaccurate use of such a term can cause disappointment, anger, and additional litigation.
Is that just a legal term? It really, it has a very specific definition under the law.
Absolutely, and if you’d like and there is time, we can specifically talk about those legal definitions but
I did a little research and I was surprised because what you are saying makes a lot of sense to me because I think you hear joint custody and that means though everybody has equal decision-making, but that’s not what it means at all, at least that is what I read. They share custody of the child, but only one parent can make decisions about their health and education, I mean
Absolutely. And that’s again a major responsibility of us as attorneys to properly and correctly educate and inform our clients about the law and how these terms are defined under the law, as well as really getting to know our clients and their specific particular families and the needs of that particular family in facilitating and assisting our client to design the most appropriate timesharing arrangement for her or his family. The most important factor in any timesharing arrangement is the ability of the parents to cooperate and communicate effectively with each other on matters involving their child. Now, that doesn’t mean the absence of tension or hostility. What it does mean though is that parents, the adults, must place the interests of their child before their own interests and anger. Parents have to be able to separate their own conflicts from the day-to-day decisions concerning the raising of their child. In short, that’s how I would give you an overview of that emotional piece of the child custody subject.
Now, depending upon what other questions you have and time we have, we can talk a little bit about the law.
What I would like to know is, say you are involved in a proceeding, a family law proceeding, it is a divorce and not your client. The other client is open to discussion and communicating and is trying to be reasonable and really does seem to have the best interests of the child at heart, and is trying to express their hopes rather than their fears, and your client can’t let go of being angry or hurt, or whatever they are trying to do to get even. I mean, what do you do? How do you help people see beyond? I thought you said about keeping the long view was really important. You might be mad today but five years down the road how you act now is going to affect your child.
Affect your child, affect you and affect all of these other relationships that we made reference to.
Right.
Here are some ideas along those lines and what I make an effort to do in such a situation. I start with having a very frank and open discussion with the client about these various issues, just as you and I have started. And it is not just a single conversation; it has to be a series of discussions over some period of time. Keep in mind that it took some significant number of months, if not years, for these folks to reach the emotional place that they are in when they show up in your office to talk about a child custody matter. And, in the case of a divorce, also think of it as a relationship that is about to end. Okay, and the creation of a new relationship in the future, especially if there are children involved, and that is what we are talking about here. So, what you are also dealing with is the grieving process and as we know from the mental health profession, the grieving process is a series of steps over a period of time, and what’s also very true, it happens in most family law cases, is that the parties come to the table at different points along the continuum of that grieving process. It’s usually the party who filed has been thinking about it over some period of time, has been able to work through that grieving process for himself or herself, and is now much further along, and the other party is oftentimes blindsided if you will.
Call it believer and believee.
Sure.
I am a divorced woman. Chronology. (Laughter)
Well, that’s
Some persons obviously have been thinking about it a long time. They have been planning or getting ready or imagining their life, and then the other person is just like all of a sudden, hey.
And, you know, I am not making a value judgment there. That’s not necessarily good or bad, but rather what is, and even the other party I would submit to you, you know, the writing is usually on the wall, okay, and while somebody has to make the first move, you know, somebody else has probably been in some fairly significant denial for some period of time and has just chosen not to deal with what’s in front of them. In any event, what we need here is what amounts to, Nancy, somewhat of a time out to allow the party who is moving at the slower pace to catch up to the other party emotionally, so that the slower party is then really equipped emotionally and intellectually to deal with the very difficult issues that are confronting the party and so sometimes that’s hard to do in a contested case when the lawsuit’s already been filed and what we have in Missouri are these time standards that tell the judge and the lawyers and the parties involved that various categories of cases are to be concluded from the date of filing to the date a final judgment and order is entered in a specified period of months. That’s doesn’t always fit the situation that folks come to us in, and so not only do I want to counsel with my client in that situation, I may recommend that my client consider consulting with some other appropriate professionals that can assist and facilitate my client’s ability to catch up, if you will.
One last question.
Sure.
In your experience with your clients, and it sounds like you’ve dealt with this issue a lot and have a lot of insight, do people eventually come around? I mean do they eventually say “Yes, the best thing for our children is this” and they come to that agreement and it works out?
Sometimes.
(Laughter)
Unfortunately, that’s my experience, and I think that my experience is not uncommon. I think that the opportunity, the challenge for us as attorneys who handle family law cases have, is to continually look for other ways, other approaches for representing our clients in these very difficult kinds of cases that will allow the focus to shift from instead of the judge making the decision as to what is going to be best for this family, and you know it is no big surprise that this judge, no matter how smart the judge is, no matter how well intentioned any judge is, how that judge is better able to make these very important and long-lasting decisions for the parties and their children than the parties themselves. So what can we do to encourage the parties to prepare themselves with the aid and professional assistance and guidance of their attorneys and other professionals, if necessary, to put aside their personal animus, all of the baggage that existed between the adults during the marriage, put that all aside and focus on what’s really important to us as two human beings, as two parents, and two people who very much love and care for our child or children and want to do what’s best for them.
Sounds like a great way of looking at it. I mean, you know, to say that you only have so much time to make these decisions and then it is going to be taken out of your hands, that should be a good motivator for people. I mean, I can’t imagine very many people would want that decision taken away from them.
Well, it seems only commonsense and yet it is about our ability as attorneys to really educate our clients in this regard and what’s also interesting along that line is that if you look at the specific statute that is the general Missouri law dealing with custody of children, which is Section 452.375 of the Revised Statutes of Missouri, it specifically says that it is the public policy in Missouri to encourage parents to participate in decisions affecting their children, to resolve disputes involving their children amicably through alternative dispute resolution. Nancy, those words are actually in the statute. I am not paraphrasing.
Right. Okay.
So I think it is interesting that we as lawyers sometimes have a tendency to focus on other parts of the law instead of the entire statute. So, you know, somebody might criticize my approach by saying, “Oh, Soule, you’re trained as a mediator, you’re trained in collaborative law and collaborative practice, you’re looking for these alternative dispute resolution models, you don’t try cases anymore.” That’s not true. I do. I’ve been a trial lawyer before I was trained as a mediator and in collaborative practice, and yet, I think people can grow and learn in the course of their careers and while there are a very small percentage of cases that have to be tried, okay, for a particular reason. The vast majority, we’re talking about over 95% of the cases, 98% of all of the cases that are filed aren’t tried, don’t need to be tried, and if we focus from the beginning, here’s the other key. What about a philosophy that focuses from the beginning of the case on resolving it through self-determination by the parties being client focused rather than judge centered or attorney centered, okay, and being committed from the beginning to have the parties and their attorneys work together in this creative problem-solving process to devise the most appropriate and best tailored or best suited parenting plan for this particular family. Boy, I think we’d have a lot less in terms of additional litigation and I think we’d have more satisfied clients and families that are better adjusted.
I agree with you. I have to say I am very glad that my children were adults when I got divorced. I would have not wanted to deal with these issues.
Well, nobody wants to. It’s not a very pleasant situation or experience. However, it doesn’t have to be this horrible experience that you know we sometimes see in the movies or on television or that we may hear from our family and friends. There are other options. There are other choices. It’s up to us. We are, you know, we have met the enemy and it is us.
I think that will make a good lead into my story, that it isn’t always “Kramer vs. Kramer.” It is not like you see in the movies.
Absolutely. It does not have to be the War of the Roses.
Okay. I like that.
There are other options.
Right.
Let me end by thanking you for the opportunity to discuss with the readers of Ladue News the topic of child custody.
Thank you. I really appreciate your input.
You’re very welcome.
Talk to you soon, I hope.
Me too. And if you ever have any questions about the law, and particularly family law, please don’t hesitate to give me a call.
Thank you.
Take care. Bye-bye.