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Thoughts on divorce/custody issues for your attorney

Updated: Dec 29, 2022

Please be advised that I am not an attorney, nor am I giving legal advice. Please bring these ideas and solutions to your attorney for legal advice before putting these strategies into practice.


This information is meant to help clients be aware of and navigate the difficult and problematic issues I frequently see as a therapist with survivors of abuse in high-conflict divorce situations with toxic, narcissistic, or abusive partners. I hope to help by sharing what I’ve learned from many survivors’ stories about what they’ve encountered in the divorce process.


Mediation

Many well-meaning attorneys recommend mediation prior to divorce, and some couples pursue it on their own as a preferable, less expensive means of negotiating a divorce. Like couples therapy, mediation is nearly always contraindicated when dealing with a toxic, narcissistic, abusive partner. Clients sometimes report spending as much money on mediation as they would have on an attorney, but with little to no results. This is because narcissists typically cannot tolerate constructive compromise, they attempt to control the mediation process, and they may abruptly leave mediation without warning, wasting your money. In the worst cases, a narcissist may charm a mediator into siding with them, and cause further invalidation and harm to an abuse survivor - especially when that mediator reports their impressions to the court.


Hidden abuse, even without physical battery, is domestic violence (DV). Coercive control (emotional/hidden abuse) was included in California’s Family Code in January 2021 (Cal. Family Law § 6320c) and the protections the court makes available for domestic violence survivors should apply to you as well. If the court mandates a mediation session and offers an asynchronous mediation option to DV survivors, please think about taking them up on it. Even your attorney may still not see your hidden/emotional abuse as DV, but according to California Family Code, it is. Advocate for yourself.


It is hard to recover from trauma when you are still exposed to trauma. Most survivors are triggered and dysregulated when exposed to their abusers, and this is not the emotional space to be in when negotiating the terms of a divorce.


If you decide to try mediation, please define your boundaries ahead of time. If mediation sounds like a good idea, think about committing to only one or two mediation sessions and if those are not productive or constructive, move on to an attorney for help.


Late or missing visits

A toxic or unhealthy ex-partner may use visits and child exchanges as another form of manipulation and abuse. They may arrive late to drop off or pick up your children from visits. They may announce at the last minute that they will be unable to execute their custodial time, forcing the other parent into breaking plans, arranging last-minute child care, or encountering an unexpected financial burden for child care and missed plans (travel, tickets to events, etc.).


Like most situations with an abusive ex, the documentation of these events is extremely important. The court may not be concerned with a few late child care exchanges, but if you begin to document these things early you may be able to show a pattern to the court. Start a document or a file, and regularly document each of these events. It is much easier to take a few minutes and update a document each week than to try to recall these events from memory later, if needed.


Another idea might be to clearly define the consequences for late or missed custodial time in your divorce decree. You might ask for language to be included that stipulates:

Regarding late or missed visitation time:

- Any missed visitation time will result in financial reimbursement to the other parent for that additional custodial time at a prorated rate per hour/day.

- In addition, any child care expenses incurred by one parent due to the other parent failing to execute their custodial time (except in the instances of documented hospitalization or serious illness) will be reimbursed at a rate of x, to be received within x days.

- Lastly, any plans missed, travel interrupted, or other financial losses incurred due to a parent failing to execute their scheduled custodial time (except in the instances of documented hospitalization or serious illness) will be reimbursed at the full rate within x days after receipts for such losses are sent.


Late child support and/or spousal support or child care costs incurred

An abusive ex-partner may pay child/spousal support late. They may not not pay at all. Or you may invoice them for costs you incur on behalf of your child (medical, dental, therapy, child-care, etc.) and not receive reimbursement. Finances are another issue toxic and narcissistic ex-partners use to continue post-separation abuse.


In addition to keeping an ongoing spreadsheet with payments invoiced, payments received, and the dates, it may be helpful to get very clear about the following in your divorce decree:

- Define the date and time payments are due each month, and the means of receiving such payments. I recommend Zelle or another automatic transfer, because it is date stamped.

- Define the means of invoicing additional child-related payments. Will you send an invoice each month? What is the recommended format? Will your ex expect receipts? Getting clarity on this will help later.

- Define what happens when payments are late or missing. Divorcing parents are frequently financially challenged, especially at the onset of a separation or divorce. You may depend on timely payments from your ex-partner to cover recurring auto-deducted bills and incur penalties if these payments are declined due to insufficient funds. Think about a reasonable daily penalty if child support, spousal support, or child-related costs are not funded according to expected time-frames.


Means of contact

Most family law attorneys in high-conflict divorce cases will recommend a court-admissible means of communication between parents. Our Family Wizard and Talking Parents are the two most commonly used applications, and I highly recommend insisting on one. There is still some question about whether or not cell phone texts are admissible in court.


When abusive ex-partners know that everything they text via Our Family Wizard or Talking Parents is visible to the courts, they sometimes refrain from further abuse - or at least decrease the frequency of this abuse.


If you’re able to use one of these apps to communicate, it might be helpful to refrain from responding to any calls, texts, or emails not sent through one of these two formats. Toxic and narcissistic individuals get supply by creating conflict, and if you insist that all communication happen in a more visible format you may be able to decrease receiving rage and abuse from your ex-partner.


It’s helpful to also define the conditions under which a phone call and/or text are required. Most parents want to be immediately notified via phone in the case of a child-related emergency or illness.


Further, please think about defining your expectations for a response to messages you send in your divorce decree. Be cautioned that this stipulation will hold you to responding within that same time frame. But clearly defining things like, “Parent has the right to make shared decisions on his/her own in the best interest of the child if other parent neglects to respond to Talking Parents messages within 72 hours,” might spare you from stonewalling and an inability to plan for your children and their care because the other parent refuses to communicate.


Access to mental health for children:

I commonly see abusive parents refuse to consent to their children’s mental health treatment proposed by the healthy parent as a means of creating conflict, punishing their spouse/ex-spouse, and further engaging in post-separation abuse. Most clients have their children’s best interests in mind, and see therapy as a common-sense solution for the extra support kids may need during divorce. But toxic individuals want to exert control over the process, even at the expense of their children’s emotional health. They fear what their children might disclose about them to a therapist. They fear an objective witness to their abuse.


If requesting consent for therapy during a separation or divorce, you may encounter:

- Stonewalling - refusing to respond to requests for consent.

- Refusal - blatant refusal to consent to therapy.

- Delaying - finding a problem with each proposed therapist and delaying the therapeutic process from moving forward.

- Financial exploitation - refusing to consent to therapy unless provided by only the most widely known, expensive specialist, placing an unnecessary financial burden for half on the other parent. Or consenting to therapy, but asserting they will not pay for it.

- Holding consent hostage to unfair terms - “I’ll give my consent to therapy, but only if you agree to not receiving spousal support.”


If your child has an existing therapist prior to your separation or divorce, you may encounter:

- Withdrawal of consent - disrupting a pre-existing therapeutic relationship between a child and therapist, usually when a toxic parent cannot control the therapy process, the therapist sets reasonable boundaries, the therapist is neutral to both parents and does not align with the abusive parent, or the abusive parent feels slighted if the therapist encourages any changes in their parenting approach. Immediate disruption to a therapeutic relationship can be harmful to children.


In California, children aged 12 and older can consent to their own mental health treatment and usually do not require both parents’ consent for therapy. But for children younger than 12, there are a few solutions to be aware of if a parent refuses consent.


In general, in an intact marriage in California, either parent can consent to their child’s therapy. If there is a separation or divorce, therapists will typically review legal and physical custody orders prior to beginning therapy with a child younger than 12 and obtain proper consents from both parents. This varies by therapist, and depends upon what step of the separation/divorce you may be in. Some therapists will treat a child with one parent’s consent who are separated but not yet divorced, citing the lack of formal legal custody agreements that require dual consent; Others will be uncomfortable with this ethical/legal gray area and will still notify the other parent and request consent. When there is documented shared legal custody, therapists will usually not treat a child unless both parents consent.


Speaking with your attorney (and having them talk to opposing counsel) about the other parent’s refusal to consent can sometimes be helpful. Opposing counsel usually wants their client to be looked upon favorably by the courts, and may be able to warn their clients about the dangers of them appearing to not put their children’s best interests first in the eyes of the court. This sometimes works.


Another resource if a parent is refusing to consent to therapy is a Minor’s Counsel. There are specific requirements that must be met in order to qualify, but a Minor’s Counsel is a neutral party appointed to represent the child's best interests during court proceedings. If conflicts about therapy become contentious and there is concern that the best interests of a child are not being represented, a Minor’s Counsel can represent your child (separate from either parent) and make recommendations to the court about your child’s needs and wishes. This process can help a child get what they need and remove you from further conflict and abuse about a straightforward issue.


If you are able, it might be a good idea to seek sole legal medical custody so you can make these decisions on your own for your child. The need for this stipulation can be difficult to prove in court, but if you have a well-documented record of the attempts you have made to seek consent for therapy from your ex-partner resulting in obstructions, delays, and refusals, you may be more successful. Family law judges seem to want to see parents acting on behalf of their children’s best interests, and if you are able to show that your ex-partner is not cooperating in this goal, you may be granted the ability to make this decision on your own.


Vacations and work travel

I sometimes see parents with formal shared joint custody struggle with how to handle the other parent’s vacation and work travel. Some abusive ex-spouses feel entitled to unlimited work travel, and assume or demand the other parent will acquiesce and take over their share of parenting and custody responsibilities. This can very easily become excessive. I also hear stories of abusers lying about going on elective personal vacations under the guise of ‘work travel.’


Most of my clients love extra time with their kids when their ex-spouse travels. But this can easily be abused when an ex-partner claims travel as a means to neglect shared parenting and custody responsibilities. You will likely encounter more child-related expenses with increased custody, and you may need to take time away from work, personal commitments, and planned social outlets with increased custody during an ex’s travel. You may be expected to sacrifice your needs and change plans when an ex-partner travels. It is best to plan for this ahead of time, and maintain solid boundaries from the start.


A solution I’ve heard about is ‘banked days.’ This is the idea that when one parent travels, either for work or vacation, that parent is responsible for giving the other parent the first right of refusal (asking that parent first if they would like the additional time with their children) while they travel. If that parent elects to accept the additional time while the other travels, they ‘bank’ those additional days for their own work or vacation to be reimbursed at a later date.


It might be a good idea to talk to your attorney about including the following stipulations in your divorce decree:

When one parent elects to travel for either work or personal vacation, the other parent has the right to first refusal and to choose either:

The child stays with them with additional compensation in child support for the additional non-custodial days on a daily, prorated basis.

OR

The same number of banked days in return for other parent’s days of travel.


Both parents will create, share, and regularly update a spreadsheet of banked noncustodial days.


Should one parent have banked days for vacation or business travel, at any time that parent can execute their right to redeem this banked time for their own travel or respite, regardless of the nature of the travel.


Should either parent have banked days and execute their right to redeem those days, that parent will propose a period (not to exceed seven days) for such time a minimum of 30 days in advance. The alternate parent will either accept or decline the proposed banked days according to his/her work/personal schedule and communicate this to the parent with banked time within five days of receiving his/her proposed dates. If the alternate parent declines the time or is otherwise unable or unwilling to return banked days, the parent with banked days will be entitled to a prorated increase in child support for those refused banked days, to be included at the next date of child support payment.


Should either parent decline to respond to or communicate with the other parent about redeeming banked time within five days of the request, that parent will be responsible for any and all associated childcare costs for the other parent’s travel or respite and will forfeit their right to either bank that time in return or be reimbursed for additional prorated days of custodial child support. In addition, the nonresponsive parent will also be liable for a financial penalty of $x/day for each normal and expected custodial day for which they are responsible.


Furthermore, if a parent elects to travel for either work or vacation, the usual and expected custody arrangements will resume upon their return. Extra custodial time upon a parent’s return from travel to compensate for their missed custodial time will not be expected nor granted unless both parents agree to this arrangement.


School, lessons, etc.

Unhealthy or toxic ex-partners may obstruct or delay approval for extracurricular or school-related activities in an attempt to exert control, manipulate, or use their children to harm the other parent. An abusive ex might also enroll children in such activities without the other parent’s approval and demand repayment or transportation. Further, they might agree to an activity and later sabotage it by not bringing the children to such activities during their custodial time, further harming the children.


Most divorce agreements contain language that states that both parties must approve any extracurricular activities, sports, or lessons prior to enrollment and split the costs. Negotiating this can be extremely challenging if the other parent is not cooperating. For this reason, I recommend spelling things out very clearly in divorce paperwork. Please speak with your attorney about whether or not it might be a good idea include the following (or similar) language in your divorce paperwork:

Regarding extracurricular activities, parents agree to the following:

- If Parent 1 would like to enroll child(ren) in classes, activities, or social or enrichment opportunities on her custodial time, they may do so at their own expense (provided it is an age-appropriate, safe activity) without Parent 2’s consent.

- If Parent 2 would like to enroll child(ren) in classes, activities, or social or enrichment opportunities on his custodial time, they may do so at their own expense (provided it is an age-appropriate, safe activity) without Parent 1’s consent.

- If either parent would like to enroll child(ren) in classes, activities, or social or enrichment opportunities that would impact their shared custodial time, they will mutually approve and share costs for any such activities.

- If parents are not able to come to a mutual agreement regarding activities that impact shared custodial time, child(ren)’s Minor’s Counsel will be engaged to assess the situation and make recommendations on what is in his/her/their best interests. Parents agree to abide by the Minor Counsel’s recommendations.

- Both parents agree to transport the child(ren) to/from mutually agreed-upon or Minor Counsel’s recommended activities during their custodial time and will not in any way interfere with or undermine these activities.

- Neither parent is not financially responsible for activities on shared custodial time one parent funds without the other’s agreement.



Please remember that I am not an attorney. These are ideas to speak with your attorney about gleaned from frequent issues I see, and are not legal advice and should not substitute legal advice. I’ve heard from some clients that their attorneys balk at the idea of such specific language in their divorce decrees, but I’ve observed that the more clients are able to define terms and expectations in advance, the less an ex-partner can confuse or obfuscate any given situation. Black-and-white terms may help protect you, and may prevent you from having to return to court multiple times and incur additional legal fees to address the sometimes inevitable stress points that arise with regard to high-conflict custody and divorce.


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