An Incivil Action: Child Custody Litigation

Writer Debra Dickerson shocked many when she revealed recently that, as a result of a five-and-a-half year custody battle with her ex-husband, she and her children are now homeless.

Dickerson and I crossed paths briefly at Harvard Law School: I was a 3L when she was a 1L.  I knew of her, though I can’t really say I knew her.  Dickerson chose not to practice law and became a writer instead.  I chose not to be poor and unable to repay $90,000 in law school debt, so I went on to practice, although the desire to write never left (hence, this blog).

I empathize with Dickerson, not because we have HLS in common, but because of my own experiences with never-ending child custody, visitation and support court battles.  I, too, had a lengthy and expensive divorce.  I, too, spent over $100,000 in legal fees — most of them in an unnecessarily protracted custody fight.  I contend my ex never really wanted custody, but included it among his demands to gain settlement leverage.   And unfortunately, because divorce = litigation, we had to fight it out. 

Child custody contests are indeed battles, ones in which the most forceful weapons are the children.  In litigation, someone has to win, and someone has to lose.  And when kids are used as weapons, whether intentionally or unintentionally, they’re the ones who get hurt.

I’m still in the midst of visitation issues with my ex.  And although I admire the professionals who are involved in my case, the process is completely illogical.  I strongly believe that child custody–and divorce, for that matter–should not be determined through litigation.  In New York, it is possible to avoid litigation if the parties negotiate a separation agreement (which they file with the court), remain separated for at least a year, and then file for a judgment of divorce based on the separation agreement.  But this approach will not work for everyone.

Negotiating a separation agreement can be a very expensive process.  A separation agreement is, in essence, a settlement agreement, and settlement negotiations are still quite adversarial.  Unlike a regular contract negotiation, a settlement negotiation involves two parties who would otherwise be suing each other, attempting to resolve their conflict by contract.  Therefore, the parties and their lawyers are often positional rather than conciliatory in approach, and unreasonable demands made out of anger and hurt can derail the process as easily as as in court.  In most cases, however, people who decide to divorce by separation agreement generally are motivated to agree and avoid litigation.

The underlying motivation is a key reason why separation agreements do not work in every divorce.  If one party wants to settle and move on, and the other party wants to fight to the death, trying to negotiate a separation agreement would be a colossal waste of time and money. 

I believe every divorcing party should be required to undergo counseling, and custody matters should be resolved through mediation. Mandatory counseling and mediation would create an atmosphere of resolution and agreement, not war.  A mediated child custody settlement, assisted by counselors skilled in navigating high conflict divorces, could keep both parties focused on the children’s best interests, since neither side would benefit from making false or overblown allegations.  The goal would be to reduce the number of pointless, endless custody and visitation battles that hurt everyone, especially the children involved.

The particulars of Dickerson’s situation do not matter to me.  I don’t want to know, nor do I care, which party is “at fault” or who has done or said what to whom in the last 5.5 years.  I’m sure, in 5.5 years, there’s probably plenty of blame to spread around.  But I feel compassion for the pain and suffering her family has endured and continues to endure.  I hope that, as news of her plight spreads, the court intervenes to force the parties to settle this lawsuit and resolve their differences in a way that allows for co-parenting and healing. 

I don’t know if my mediation and counseling proposal is workable in practice.  I do know that the current system is broken.  We need a better process for deciding custody cases.


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3 Responses to “An Incivil Action: Child Custody Litigation”

  1. babm8krs Says:

    Amen! While I didn’t spend nearly the $100,000 you did in custody and divorce litigation, I did spend upwards of $30,000. All this while earning less than $30,000 annual salary. I’m still paying my debt to my attorney. And, I lost primary custody of my children mostly due to the fact that I couldn’t afford the fight anymore. I chose to not completely bankrupt myself and my entire family network and moved on. At least now I can afford to pay the child support that has been ordered.

    • carolynedgar Says:

      I think it’s horrible to have to choose between custody of your children and bankruptcy. And having to incur $30,000 in legal fees when you make < $30,000/year shows that something is really wrong with this system. I hope you are able to work out a shared custody arrangement in the future.

  2. Onika Pascal Says:

    I’m totally in tune with this blog. I too am divorced, fiddled with the custody issue, but didn’t spend any where near the dollar amount stated. One we were young and didn’t have much property to battle over. My mom in her divorce all she wanted was her 3 children. Declined alimony and anything else as long as she got us. Of course my donor (never call him my father) agreed. He had more money in his pocket to feed his alcoholism. Like my mom, I too, in my divorce was only concerned of having full custody of my son. I didn’t file separation…I didn’t want to wait a year…I filed “sexual abandonment”… thinking I’d have it done and over with. My son’s dad took a year to sign the papers. Gave me a hard time. When he finally did, after months of frustration, fighting and arguing, my main concern was full custody of my son. I made a deal with him, I declined alimony as long as he agreed to pay “support” every week…HA! Then he made my life a living hell when it came to custody…I didn’t have the courage or the money to put up a battle. I caved in and settled for joint custody. Wrong move.

    I wanted to move out of state a few years after and was told that if I do, without his consent, I can be charged with kidnapping, if he so chose. And it was something I didn’t want to risk. I stayed in town to date. I’ve always regretted not battling…but I digress. I have my son. $100 a week in child support…but I have my son

    I too, hope babm8krs works something out. Our children are the reason we sustain

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