Early interventions – avoiding litigation and court

Trial or controlled separation?

Separation is a major step for everyone, taking its toll with emotions alternating between grief and relief, sadness and anger, shock and denial. Children generally want to live with both their parents under the same roof - unless the inter-parental arguments have persisted for a very long time. The process of moving forward and accepting and adjusting to the new life tends to be slow for all concerned - and above all for children. Immediate decisions about practical issues such as finances can often be difficult and many disagreements will often surface. Professional help may be accessed, often in parallel rather than jointly.

When a marriage or other form of long-term relationship breaks down and parents eventually separate, children typically enter into new living arrangements with each parent. Whilst most separating parents begin to live in different dwellings, some do in fact continue to inhabit the same house for economic reasons. There arc also those parents who choose ‘nesting’ in order to minimize the upheaval for their children - they may each stay with a friend or member of the family and rotate, moving in and out of the family home with the children staying put. If parents cannot agree on family life after separation - and this is more often than not the case in high-conflict families - lawyers and courts get drawn in and therapists and other professionals enter the scene. This is usually very costly, both in financial and emotional terms. Avoiding litigation and court is therefore an important consideration for all separating parents.

There are a number of options to manage separation and divorce without too much expense. Many couples will first agree on a period of informal separation before the separation becomes ‘official’ andcan then have specific legal implications. When parents first consider a trial separation they do so to improve their relationship and to protect their children from the fallout of a permanent separation. Creating a temporary distance can assist in gaining new perspectives and it is often a helpful strategy to keep the family together in the long term. However, this scenario works best when well-defined separation agreements arc made, covering issues such as childcare, contact between the children and both parents, the division of finances, assets and property. Parents can generally do this by themselves before seeking the assistance of a solicitor. When these arrangements are put in writing, they can be referred to during the course of any eventual divorce proceedings. Solicitor negotiation is another, costlier option and it consists of both parties’ solicitors engaging in a process of correspondence and discussion to broker a solution on behalf of their respective clients without going to court. Sometimes collaborative law negotiations arc conducted face to face in four-way meetings between the parties and their lawyers. Mediation is yet another option - here the parents try to resolve issues relating to their separation with the assistance of a professional family mediator. Mediation is frequently seen as the preferred means of resolving family disputes. In England, for example, any party wishing to make a court application following family breakdown is required to first attend a mediation information and assessment meeting (MIAM). In many European and North American countries mediation information sessions arc recommended and in some countries they arc compulsory, in the hope that agreements can be reached, above all in relation to dependent children. Judicial separation is a legal process without the finality of a divorce and is frequently chosen because of family and/ or cultural pressures or religious reasons. The parents remain legally married but can get court orders regarding their finances and childcare arrangements. It can be a cooling down period during which conciliation and/or counselling can happen.

Developing a shared ‘mantra’: protecting children’s relationships with both their parents

Many separated parents are well aware of the importance of their children preserving a relationship with both their parents and they make this an absolute priority. However, entrenched conflicts between parents and the intense and complex feelings generated can lead to some parents losing sight of this priority. This is especially the ease in families where one or both parents have themselves been bought up in the absence of one of their own parents, and/or where there is a strong family narrative around surviving in the absence of one parent. Sometimes there is also a culture within a family of other parental figures who, it is thought, arc well able to fulfil the role of the absent parent. It is of course the case that many children thrive in one-parent families and benefit from the input of extended family and family friends. However, this does not ameliorate the harmful impact of being caught up in parental conflicts, which results in losing touch, physically and psychologically, with one of the previously loved parents.

If parents are at the point of separating they may wish to access some help in the form of parental couple counselling or therapy. This may help them to understand how their own experiences of being parented may be different from the parenting their children need. For example, parents who have themselves been emotionally and physically abused by one of their parents may benefit from reflecting on how this may have organized their own views about family life and parenting. Their own frightening representations of the abusive parent may be paired with guilt about having actively rejected that parent and can motivate parents to protect their child’s relationship with both parents. In other cases, the demonization of an estranged mother in a father’s childhood may lead him to repeat the ‘family script’ of bringing up children by fathers to the exclusion of mothers - without being consciously aware of it. If separated parents seek out psychological help in the form of parental couple counselling, it can help them to examine family scripts as well as how one’s own experiences as a child can influence the making and shaping of relationships, including those with one’s own children. Parental couple counselling does not mean that both parents need to attend at the same time; this can often seem too much of a challenge, particularly when emotions run high and the separation has been characterized by much acrimony.

Establishing a shared mantra from the very beginning of the process of parental separation to which both parents commit themselves explicitly, can help to protect the good intentions almost all parents have: ‘We will aim to protect our children’s relationship with both of us, whatever the level of conflict between us’. This involves also committing to the below principles:

  • • Wc will try to protect our children from direct exposure to the conflict between us (including disputes about contact and residence) and take care that they are not exposed to it vicariously, for example by witnessing our own critical or negative feelings about the other parent, or by having to overhear critical conversations or seeing posts on social media.
  • • Wc will provide our child with a consistent and coherent narrative about why wc have separated, which does not attribute blame to the other parent and includes explicit reassurances that our children’s relationship with each parent is separate from the relationship their parents have with each other.
  • • Wc will aim to provide our children with a consistent experience of being parented by devising and sticking to a written parenting agreement and reviewing this at agreed intervals.
  • • If, despite our best efforts, there arc times when we do not achieve these aims, we will raise any concerns with the other parent immediately, cither directly or via a mutually agreed third party.
  • • Wc will not question our children directly or indirectly (for example, by asking for detailed accounts) around the other parent’s commitment to these principles.
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