Over the past couple of months, I’ve had the chance to catch up on my Netflix queue and watched “Marriage Story”. I recommend it if you are looking for a good drama with solid acting and raw emotion. That said, it was a bit hard watching the behind the scenes fall out that often happens between a couple during a divorce. As a family law attorney, I am on the outside looking in. “Marriage Story” provided me with an inside perspective of the day-to-day that I’m not generally privy to. The movie also reminded me that while I can try with all my might to counsel my clients on the consequences of going through a nasty bitter contested divorce, the reality is that human emotions are strong and hard to overcome. I thought it would be helpful to juxtapose the movie against scenarios that I routinely come across and use this analysis as a reminder to parents going through a divorce how their seemingly innocent actions during a divorce or custody dispute can result in much greater hardship for their child.
The Unintended Victim
Divorce often brings out the worst in people, and often children are the unintended victims of the swirling rage. The courts in most States are charged with deciding custody based on the “best interests of the children,” but where both parents are more concerned with “winning a war,” than what’s good for their children, the children become the unintended losers. The length and cost of custody disputes also creates uncertainty for children. The child is often left wondering: where is my real home, where will I go to school, do I have to choose one parent over the other, etc. A child shouldn’t have to shoulder these burdens, let alone be put in a position to choose one parent over the other.
In the “Marriage Story” there is a scene where the parents, who are in the midst of their divorce, bicker over Halloween plans. One parent proposes the parents take the child out together, the other parent objects and insists they split the evening and take the child out separately. Ultimately the child’s night is split between the two parents and the scene depicts a tired, frustrated, and upset child being dragged around town.
Often there are a multitude of factors that may make it impossible for parents to share in these moments together, such as a history of domestic violence, physical distance between the parties, or a complete inability for the parents to amicably communicate. However, where these barriers don’t exist, the parents should ponder whether making the effort to share holidays or special events is in the best interest of their child.
In the “Marriage Story” (spoiler alert) we see the parents come to a point of acceptance and forgiveness toward each other that allows them to move forward and co-parent efficiently. The movie ends with both parents taking their child trick-or-treating together. This may seem nominal, but the scene depicts a child that looks at peace and happy to be sharing his evening with both parents. Ultimately it should always be the goal for parents, attorneys, and judges to put the child first, but determining what that means is not always easy.
Competing Self Interest
Texas law provides, it is in the “best interests of the children” to have a close relationship with both parents, however achieving this becomes more difficult the further the parties decide to live away from each other. Often my clients are wanting to move based on lack of family ties to the community they currently reside in, better job opportunity, or just a desire to start over. The question then becomes, how does the court weigh the desires of one parent against the other.
In the “Marriage Story” the couple lives together in New York, but when they separate and begin their divorce, one parent takes a job in California and moves there with the child. The parent residing in New York believes this to be a temporary arrangement that they are agreeable to, but the question becomes, what happens when that temporary arrangement becomes permanent. Is making a plan, without the other parent, to live across the country permanently a purposeful plan to alienate the other? Does the act of unilaterally making decisions to benefit one parent over the other create the potential of parent alienation? Also, should one parent’s interest ever be put before that of the other? Does one parent deserve a greater say than the other?
Often it is hard for the parents to step back and realize that although they are trying to get a fresh start for themselves, the parents have an anchoring bond, their child, that will always keep their lives tethered together. Accepting this reality and working within this reality is often the hardest issue to resolve.
Does 50/50 Custody Solve the Problem?
The traditional way that most states have attempted to maximize stability in children’s lives has been to keep the children in their homes, in their schools and with the parent that was primarily responsible for their care during the marriage. This usually means that the other parent became a “weekend” parent, ultimately changing the parent-child dynamic that once existed. In Texas, we see this kind of possession in a “standard possession order” which provides one parent primary has the child through the week, and the other parent get possession on first, third, and fifth weekends and various holidays.
This “traditional” way of doing this also was created in a time where is was more prevalent that one parent worked and one parent remained in the home to care for the children. The reality is that we often have two parents who work and divide the duties of the home and care of the children, making it harder to articulate who is the “primary care giver”. The most recent trend is 50/50 parenting, where children split time equally between two homes on spending equal time in each place. There is much dispute amongst attorney, judges, and child psychologist whether this parenting plan is to the benefit of the child.
In the movie, the living situation is unique, two parents living across the country from one another which obviously makes shared timed impossible given the physical distance. Even so there is an ultimate resolution and sacrifices are made in order to sustain an ongoing relationship with both parents. In reality, every situation is unique and there cannot be a uniform approach that fully takes into accounts the specific facts of each case.
This is my parting two-cents as an outsider looking in: both parents have the power to decide the tone and path that the dissolution of the marriage takes. Making the choice to push past disappointment, frustration, anger, and sometime hatred is no small feat and nobody else can know what is it like to be in your situation except for you. That said, it is important to step back and reflect on how each parent’s actions, words, and attitude toward the other parent is impacting their child. Remember, what happens in the midst of these lawsuits will have a lasting impact on your child.