Warning: This contains spoilers about Marriage Story.
I really had no desire to see the award-winning Marriage Story. None. In the same way that a doctor might have zero interest in watching Grey's Anatomy, the last film this family lawyer wanted to watch on Friday night was a movie about divorce. Last night, though, as sometimes happens in my shared-remote life, that’s exactly where I found myself. Marriage Story didn’t offer me the escapist adventuring I love most about movies, but it did incorporate many key issues central to the majority of divorces in this country. So, in an ironic twist, I will be analyzing and expanding on different issues in this movie I didn’t want to watch because they have interesting, powerful implications for divorcing parties.
It is important to note that while divorces are VERY common, rarely are divorces the same; while they all have similar characteristics, they are all unique. These blogs will offer one perspective, but they are not meant to be a substitute for speaking with an attorney about your case specifically. That said, Marriage Story offered fascinating and important considerations about all-too-common issues that I regularly help my clients navigate. Some scenes provided explicit exploration of how issues like residency, parenting time, infidelity, and asset division are addressed in the divorce. Other scenes offered too-fast, overly-vague intimations about critical topics like judge and attorney qualifications, subsequent relationships, and co-parenting that beg for further exploration. Today’s blog will laser in on the parenting evaluation piece of the film and connect it to real-world parenting evaluations in Arizona.
THE PARENTING EVALUATION.
Adam Driver’s character, Charlie, is Skyping with a decorator to adorn his apartment with cozy furniture, a welcoming rug, framed artwork from his son...and (I think we can all agree) way, way too many plants. The Whole Foods paper bag sits on the table as he roasts organic vegetables and prepares a dinner with enough nutrients to sustain a child for a month. What is going on here...and did he really have to work so hard?, And what power does that the kooky, tap-water drinking, socially-awkward evaluator wield?
In Arizona, full parenting evaluations are only ordered when:
1. A party requests one
2. Legitimate fitness concerns exist
3. There is no objection from the other party
4. One or both parties can afford it
During an evaluation, the evaluator observes the interaction between a parent and child. They look to see if the parent is aware of, and responsive to, a child’s needs. They survey the environment to verify it is safe and free from drugs, unsecured weapons, and poor judgment.
These evaluations are never paid for by the state in civil cases, as they are exceedingly expensive, ranging from $6,000-$10,000 each. If there is an objection, and there isn’t enough of a concern or financial resources to pay for it, the judge can decline to order. These evaluations can occur in the parent’s home, in a psychologist’s office, or a combination of the two. They can solely include observation of the parent and child interacting...or they could also include personality testing (like the MMPI) designed to determine the presence of mental illnesses that could negatively impact their ability to parent. In the film, we get a brief glimpse of psychological testing for both Nicole and Charlie.
The purpose of a parenting evaluation is to influence a judge’s decision about what parenting time is in the best interest of a child’s growth and development..and which parent should have legal decision making authority. Parenting evaluators are independent contractors, used by litigants in court, to support their respective positions. They are typically trained mental health providers. Their job is to convey the information procured during their assessment activities. The vast majority of the time, appropriate or not, parenting evaluators will also make a recommendation to the court addressing legal decision making and parenting time.
Back to our movie. We never get to see the evaluator’s report...but we learn that the final parenting time split approved by the judge is 50/50 (although Nicole’s attorney negotiates her client an extra 5% on principle). The clean, safe home and healthy dinner offered by Charlie checked some boxes. His redirection of his son when he doesn’t want to help with dinner certainly checked some more. The weird knife incident, you ask? I hear you. Certainly painfully awkward, but not enough, in aggregate with all other evidence of Charlie’s evaluation (most of which we didn’t see) to deny his equal parenting time. Additionally, we did not witness Nicole’s evaluation, which would equally play into any judge’s decision regarding legal decision making and parenting time.
Parenting evaluation was just one interesting piece of this movie. Check back for my next Marriage Story blog, which will focus on the HUGE role that establishing residency played in Charlie and Nicole’s divorce...
Your Only Rule: PREPARATION!!!
“It’s an unfortunate fact that we can secure peace only by preparing for war.” -JFK
“By failing to prepare, you are preparing to fail.” -Benjamin Franklin
“Don’t depend on the enemy not coming; depend, rather, on being ready.” -Sun Tzu
“Be prepared.” -Boy Scout motto
“The future belongs to those who prepare for it today.” -Malcolm X
“Confidence comes from being prepared.” -John Wooden
“Plan your work for today and everyday; then work you plan.” - Margaret Thatcher
There’s total consensus in Quoteland about the importance of preparation. Despite era, country, expertise, profession, party, race, gender...a universal agreement exists about how critical preparation is to success. So let’s apply the practice of preparation to high-conflict holiday parenting! If you’re new to high-conflict parenting, please see my general interaction guidelines published in my August blog ‘5+1 Parallel Parenting Must-Dos’. Seems like I always circle back around to these during the special times of year when the stakes are higher and events are more precious.
WRITTEN PREPARATION: THE HOLIDAY PARENTING TIME PLAN
The holiday parenting time plan needs to be 100% in writing and highly specific. Worst case scenario, without a written plan, there is no legal recourse if you find yourself in the situation of needing to call the police about custodial interference or kidnapping. Best case scenario, without a written plan, there is plenty of ‘grey area’ for a former spouse to manipulate, scare, and aggravate. To make it as useful as possible, the written plan should have several specific elements to prevent conflict:
One of the guarantees I can make about high-conflict holiday parenting is that someone is going to try to introduce chaos and sow seeds of discontent. That’s what makes it a high-conflict situation! As the stable parent, be steady, consistent, and resolute. Do not deviate from the written plan outside of a 100% documented emergency. No day swapping. No time changes. Work your plan (it’s why you have it). Deviating from the plan teaches the dysfunctional party that you do not actually require adherence to your written plans and agreements...a horrible and dangerous message to send. At all costs, unless it is an emergency, avoid last-minute changes and communications. Often, in high-conflict situations, standards are intentionally not met to facilitate antagonistic communication with the other parent. Don’t take the bait.
PREPARATION FOR (ugh) INTERACTING
JUST DON’T. Stick to the communication rules of high-conflict parenting observed the rest of the year: Speak as little as possible. Speak in writing. In advance. Speak through email aligned to my guidelines...maybe even supervised email (depending on the severity of your situation).
DON’T get tricked into the holiday spirit that does not apply to your situation. Don’t be swayed by sappy holiday movies and nostalgic movies. Changing your interaction rules, set for your own well-being, sends messages counter to your position and will create months and months of subsequent cleanup. Thinking about texting some holiday pictures of the kids to be nice? ABSOLUTELY NOT! See my July blog for High-Conflict Back-to-School Tips for guidance on this. Or try this...imagine that I’m going to bill you $25 for every word you speak. Rules for the other 364 days of the year apply to Christmas!!!
Your strict limitation on communication does not extend to the kids. If children are old enough, and one parent can’t see the kids on holiday, and that parent has requested it, you can facilitate a phone call...but do not be a part of it. Not even a perceived part of it.
What about the Grandparents...
Typically, my advice is that communication with grandparents is the responsibility of each grandparent’s child. In high-conflict situations, even well-intentioned cross-communication with your ex’s parents can be fraught with discord. You run the likelihood of info you share being passed along to the high-conflict party. You also run the risk of the other parent viewing grandparents as an acceptable, alternate avenue for communication with you, which it is not. Recognize that is no longer your job to make up for your ex’s lacking parenting or social skills.
PREPARATION for GIVING
This is a grey area. How do you handle a child who wants to buy/wrap a present for your ex? You want to support your child’s giving nature, but you don’t want to send a mixed message about your position.
Remember, you’re NOT dealing with a typical person in a high-conflict situation. For example, narcissistic parents interpret this act as the other parent still loving and wanting them. Parents with financial grievances will pick at your spending. You just can’t win this one...so avoid the conflict.
A nice middle-ground is to encourage the kids make something independently. When the child asks to buy a particular gift, say, “That’s a great idea...why don’t you draw a picture of that?” Then let them do the wrapping. You want the gift to be construed as 100% from the child...and it’s a great way to help your kids really own gift giving and their relationship with their other parent. You can still be hands-on in your child’s gifting arena for grandparents, teachers, and friends.
Real estate is often one of the largest assets of a marriage. As such, consulting clients often ask what will happen with their house. This question has two possible answers to it: one party may keep it and buy the other out, or the parties can sell the property and divide the net proceeds equitably. There are two steps important to either decision.
#1: Valuing the property
First, the value of the home needs to be determined. If the property is going to be sold, the realtor will generally assist the parties in determining the market price. If one party is going to keep the house, he or she will use the valuation to determine the funds necessary to buy out the other partner’s equity, which is determined by obtaining the value of the home and subtracting the outstanding mortgage.
This sound straightforward, but it can be complicated when the parties do not agree on the value. If the parties cannot agree, there are a few resources that can help: Zillow, market comps from a realtor, or hiring one (or multiple) private appraisers. If the matter proceeds to trial, the court is likely to give more weight to an appraisal than a comparative market analysis.
#2: Paying for repairs
Regardless of the decision of sale or buy-out, repairs to the home may need to be made. There are a number of ways this can be accomplished. Some couples split the agreed upon costs equally or proportionate to their respective income. Sometimes, the higher wage earning spouse will pay the costs upfront, and then at the close of escrow, that party will receive a percentage of the costs paid prior to the parties dividing the net proceeds. In some instances, the spouse retaining the residence will assume responsibility for repair costs.
Should You Keep the House?
I normally advise my clients against keeping the home unless there are special accommodations that have been made to the residence for disabled family members. My typical reasons for selling, which are completely dictated by logic alone, include:
You want to find the best attorney. You talk to friends. To colleagues. They pass you some names of promising candidates. You Google: ‘best family law attorney arizona’, ‘best divorce lawyer arizona’, ‘best child custody lawyer phoenix’. You search ratings on AVVO, Lawyers.com, and Legalmatch.com. You comb websites. It’s JUST. TOO. MUCH. How can you really find the best lawyer? The truth is, there is no ‘best lawyer’; there is only the best lawyer for you and your situation. Attending to three things can help you achieve this: introspection, interviewing questions, and interview reflection.
PART 1: INTROSPECTION
First, here are two things you need to determine before interviewing any attorneys. These are things only you know - no attorney has this information. Although your expectations may change over time and across situations, YOU will be the one determining the course of your case:
Once you can answer those two questions, you need to interview potential attorneys who have the skill set and temperament to reach your goals within your parameters. Remember, YOU are interviewing THEM...not the other way around! You need to come to each interview prepared with questions, and you need to take notes. Here are 6 questions that I would always ask:
Funny...when I read through these items, they sound so much like the mental gymnastics we run through when we’re on a first date! As odd as that may seem, it’s entirely true. Mindfulness during the interview is critical. There is a very real gut-check that should happen on your part during these meetings. In the interest of helping you glean some crucial information during your lawyer consults, there are 6 key things to watch for and be mindful of during your interviews:
Photo by Xavier Mouton Photographie on Unsplash
Co-parenting is all the rage. Conceptually, it is awesome. It requires two well-adjusted, divorced adults who are committed and able to put their personal hurt and emotions aside in the interest of working jointly in their child’s best interest. Co-parenting demands ongoing communication between the parents and regular interaction. It seeks to unify the parenting styles across the two households, and through consensus, to establish consistent, common routines and expectations in both homes.
Does this sound like a nightmare to you? You’re not alone. In my world, as a divorce attorney who deals with many high conflict situations, the co- parenting model is an untenable pipe dream. In a high conflict relationship, parents are unable to effectively communicate productively at all. They definitely cannot set aside their own adult emotions and needs for the benefit of a child. Control is wielded as a tool of power, and even little compromises are unfathomable. Not even when a judge is involved. To minimize high-intensity interactions, some courts have ordered a very different parenting model, whereby the divorced couple each parent unilaterally during his or her respective parenting time with the primary benefit of minimizing interactions.
Enter Parallel Parenting:
First and foremost, parallel parenting is only employed when both parents are safe, mentally stable, sober, and healthy. If a child’s well-being is ever in question, contact a lawyer immediately to seek a temporary order. Safety first!
Parallel parenting encourages minimal interaction or communication. Information is still shared, but almost all communications are via email (or some form of writing) to document the communication and eliminate live improvisation. Parallel parenting recognizes that there will be no consensus between the two estranged parents, and that each is capable of establishing healthy and reasonable routines, in their respective homes, with very little interaction.
What Does This Look Like?
5+1 Parallel Parenting Must-Dos!
Let go of the guilt. All marriages and divorces are unique...and 10% of divorces are high-conflict. In most high-conflict divorces, one party is the antagonist due to mental illnesses and/or substance abuse. If you're reading this, odds are you're not the cause of the conflict. Parallel parenting is not a lesser-than strategy. It's not a give-up. Gwenyth Paltrow is not going to show up at your house to parent-shame you and discuss conscious uncoupling (ugh). Parallel parenting is a conscious and strategic technique to minimize unnecessary conflict with an antagonistic ex so you can save money and build a more peaceful future for yourself and your children.
This article is not intended to determine which method is better, but to recognize that more than one option is available. Each family needs to avail themselves of the model that best fits their situation and needs. In many of my cases, co-parenting is NOT a viable option; in fact, it can be damaging to try. Parallel parenting is something that works for many families, and ultimately, can be in the best interest of the child.
Divorce parties are a thing around the world. You can read about them almost anywhere. Parents Magazine published an article in February about them. You can find thousands of Pinterest boards offering party planning ideas. In 2017, The Guardian shared a story about how planning a divorce party for her best friend turned her into full-time divorce party planner. In 2018, Glamour Magazine published an article about divorce parties, sharing their Twitter, Facebook, and Instagram hashtags and revealing shocking party price tags of up to $20,000. For a good laugh, you can even visit Buzzfeed to see 24 Hilarious Divorce Cakes That Are Even Better Than Wedding Cakes.
As a family law attorney, I’ve had several clients host divorce parties. In fact, a client whose divorce was finalized this month is planning one as I type this. In all of the cases I’ve experienced, divorce parties were not about celebrating divorce itself. Divorce, even in its most evolved iterations, is typically painful and disappointing on some level...certainly not party-prompting. Rather, the divorce parties I’ve witnessed are always about reconnecting with friends essential to moving life forward. They are also about providing closure to a painful but positive milestone in life. Maybe these parties are misnamed entirely. Phoenix parties? Lotus luaus? Gloria Gaynor galas?
If you’re considering a divorce party of your own, or hosting one for a friend or family member, I have some practical suggestions to consider (I know - buzz kill family law attorney strikes again!). The majority of my clients are in high-conflict divorce situations...so I’m always sensitive to minimizing antagonism. In high-conflict situations, even the rumor of a ‘divorce party’ would prompt retaliation, venom, confrontation, or harassment. Outside of a high-conflict situation, in the world of relatively well-adjusted adults, news of a divorce party still has the potential to hurt feelings, cause discomfort, and burn bridges unnecessarily. In the spirit of moving forward positively...and doing no collateral harm...here are 5 divorce party recommendations:
Whether you’re a fan or not, divorce parties are a widespread reality around the world. Here’s to hoping that are supportive and future-focused celebrations that affirm life, strengthen friendships, and bring healthy closure to a complicated milestone!
HuffPost’s Test Kitchen ran an incredibly powerful article a few years ago, This Is Not a Love Story, chronicling the overwhelming intimate partner violence and homicide in the US, then followed that up with a CDC summary titled Who Is Killing American Women, Their Husbands and Boyfriends, CDC Confirms. Sadly, this is a seemingly never-ending reality that continues to play out in our news cycle. Just this year, in our own Phoenix community, Dwight Lamon Jones killed six people in a rage of violence fueled by his anger about his divorce and child custody arrangement. Just this month, John Formisano, in the midst of his divorce, shot and killed his wife and critically injured her friend.
These events are constant reminders that the amount of information people have about potential perpetrators of intimate partner violence varies, from John Formisano’s colleagues who described their shock about his actions as, “A tremendous understatement.” to Dr. Connie Jones’ assessment of her own ex-husband that, “I knew one day he would try to kill me”. Once family, friends, co-workers, and victims have knowledge of concerning behaviors and beliefs, we now have risk assessment tools that can be used as critical life saving tools. Some excellent ones can be found at womenslaw.org, the CDC, and the NCDSV.
In my high-conflict family law speciality, in this day and age, I am always mindful of potential lethality. Divorce and child custody disputes rattle even the most steady and healthy adults, but time and time again we see that they can prove deadly for adults in high-conflict situations. Here’s to all of us helping protect our loved-ones through proactive awareness and intervention.
Brittany Wong’s article in HuffPost, “10 Smart Back-to-School Tips for Divorced Parents”, offers helpful guidance to the lucky 90% of divorcing or divorced parents who are emotionally healthy and enjoy a reasonable relationship. Because the vast majority of my experience as a family law attorney comes from working with parents in high-conflict (HC) divorce cases, I see Wong’s article through a very different lens.
If you’re new to the term HC divorce, it’s one in which there is ongoing, unrelenting malice between the parties. These divorces, and their post-decree needs, persist far past the typical window of divorce...and in some cases, the court actions never end. There are often allegations (both valid and unsubstantiated) of domestic violence, physical abuse, sexual abuse, coercive control, substance abuse, and mental illness in high-conflict situations that make them complex and volatile. Often, they include multiple no-contact orders and/or orders of protection. Child support and parenting time issues are battles and often the stakes are high for the children. Because of the level of conflict between the parents, they are unable to communicate effectively about their children without clear guidelines, 3rd party support and/or the threat of court sanctions.
If you are one of the unlucky HC 10%, the back-to-school suggestions in Wong’s article are DEFINITELY NOT FOR YOU. In fact, most of them can be counterproductive and several can be downright dangerous. To help parents in HC situations navigate back-to-school time, I have reframed the suggestions in this article for you:
#1: Splitting Back-to-School Costs
In a HC relationship, this is unlikely to happen and will lead to an unproductive argument. The parent who pays support will argue that back-to-school costs are included in their monthly payment. Also, HC relationships contain constant accusations that funds intended for the child are not being spent properly.
Make sure a provision exists in your decree that expressly states who is responsible for back-to-school expenses, outline the amount, and define the process for back-to-school reimbursement.
#2: Create a Shared Google Account
In a HC relationship, this is nothing but a control mechanism. One parent will see this as the other trying to control them, and this will lead to more tension, fighting, and disputes.
Each parent should provide a concise weekly summary of each child’s events and deliver this via email. This weekly summary should always be sent by a set day and time each week, and it should provide a brief summary of key events (school, medical, extracurricular, etc.) about both the past week and the week to come. I really like the ‘10 words or less’ recommendation for each summary item, as it helps parents stick to the point and eliminates emotional adverbs and adjectives. Each parent should understand and remember that written records are always key in the HC world.
#3: Drop the Kids off Together on the First Day of School
In a HC relationship, this could end in a police incident. I wish I were kidding.
The parent who has parenting time is the only parent who should transport children to or from school on any regular or special day UNLESS there is an expressed agreement in writing in advance (good luck with that).
#4: If Your Ex Can’t Be There for Day 1, Text a Pic
For a HC relationship, this is terrible advice. I know it’s counter-intuitive, as it sounds so considerate on the surface. In my world, this will only be perceived as a taunt (“I’m here, you’re not, hahaha).
Keep the picture for yourself UNLESS the other party requests it. If the request is made, kindly forward it without any editorializing; if they don’t request it, don’t share.
#5: Let Your Kids’ Teachers Know Who’s Who in Your Blended Family
This is ill-advised for HC situations for a variety of reasons. At the end of the day, there are only two parents with legal standing in the eyes of the school.
If it is critical for your child’s academic or social development to share information about your home situation, do so briefly and free of editorializing. ALSO, keep in mind the limited capacity teachers have for communication. Elementary teachers have nearly 40 students...and some have 80 or 120 in schools with specialization. I know of many schools who place a limit of 3-5 sentences for parent emails to keep the reading manageable for teachers. Finally, remember that legitimate safety emergencies should be called in to the principal or delivered in person...often, school emails are not read until the end of the day.
#6: Attend Parent-Teacher Conferences Together
In HC relationships, this type of interaction will only introduce untoward personal conflicts into the child’s classroom...not to mention be unproductive while yielding subsequent disagreements and conflicting accounts of the meeting.
Most schools are willing to offer two separate conferences in extreme circumstances. In cases where this is simply not doable, or if you feel that it is an unfair imposition, arrange for an email or recording of the conference as an alternative.
#7: If an Ex Lives Out-of-State, Have Him/Her Call in to a Conference
This isn’t necessarily a bad idea if the school and teacher are willing/able to accommodate the request, and the parent can listen without interjecting, but an asynchronous recording would be just as informative while better minimizing the conflict that stems from live interactions. Plus, there is always a documented version of the meeting asynchronously, which reduces conflicting interpretations/accounts of the meeting.
#8: Set Times to Debrief Together
In a HC situation, this is an explosive idea that will lead to new arguments and accusations at best, and court orders and arrests at worst.
Abandon the commonly-touted practice of co-parenting (which surely isn’t working anyway in a HC relationship) and embrace parallel parenting. Co-parenting is not for you! If there is a court-mandated weekly summary, that practice eliminates face-to-face confrontations while still providing both parties with the necessary information to parallel parent effectively.
#9: Don’t Leave Your Ex’s Side out of the Family Tree
In any situation, a child should be responsible for collecting this information from each parent...as they are for all school assignments. Working from that belief, neither parent should need to contact the other for this (or any) school assignment...the child will lead this communication.
Use the weekly summary provided by the other parent along with flyers, emails, and school portal communications to stay informed about homework assignments and projects. Each parent should be sure to sign up for all necessary school information accounts at the start of the year and maintain the responsibility of keeping themselves informed. Do not contact the other parent for this type of information.
#10: Create a Group Chat to Discuss Your Child’s Wins and Progress
NOPE. NEVER. In a HC situation, parties should seek to minimize, not increase, interactions and communications with each other. In fact, many HC parents employ a parenting coordinator to mitigate unfounded accusations and help keep those necessary communications timely, appropriate, and civil.
I strongly encourage the weekly summaries described above. These summaries ensure important information is shared and documented while minimizing the never-productive contact between the HC parties.
I hope this helps parents in the 10% high-conflict world navigate the tenuous back-to-school landscape. Recognize that your situation falls outside of the intuitive co-parenting norms embraced in the mainstream, let go of those practices, and shed any guilt you’re harboring about failing to function like the 90%.
Jason Castle is a family lawyer who specializes in high-conflict cases. He's also a former prosecutor & social worker. Hear his latest divorce thoughts!