The Power & Unnecesary Evil of Words in the World of Divorce

I have just finished working on three trials back to back; all involved the fight for the “control” of the children and I am convinced that all three cases became contested only because of the use of the wrong words in the agreements or in the negotiations which attempted to settle the children’s issues.  There is mistaken belief that to get “sole custody” is to “win” and to be left with “visitation” would be to “lose”.   I don’t know if the cases could have been avoided, but the bitterness and consequently the increasing cost of legal representation could have been tempered by the use of “gentler and kinder” words (labels) that describe the rights, obligations and duties of the parents toward each other and the children.

There is a great deal of unneeded power that we have ascribed to words in the practice of family law.  Even the simple process of getting to the point of titling this little essay was the choice of the referring to this article as relating to the word “divorce” or “domestic relations” law unnecessarily sets the reader on the mistaken belief that by calling the issues custodial rather than referring the same issues as “child related” changes the effect.  Not so . . .  For example, in recent child custody related dispute one parent had the “control of the children” and called the other two hours before a visitation to say, that the child was running a fever and would not go to the visit.  Faced with the dilemma of not knowing if the illness is real or just an excuse to push the other side, the other parent called for advice to her “sage” attorney.  The attorney suggested an email to the parent saying that she hoped the child felt better and would be pleased to move the visit to the next evening if the child was feeling better.  This “kindness” in the face of an obvious provocation turned what could have been an ugly situation into one where the parent with the sick child, simply said thank you for the consideration and in fact the visit occurred without incident the next evening.  How often, does the choice of angry or sarcastic remarks cause the incident to escalate into something those benefits no one?

Somehow the word “family law” is more tolerant than either of the “d” words.  When we look at the way that the parents of children can relate to each other and to the children we have loaded words: SOLE, JOINT CUSTODY, CHILD SUPPORT, SUPERVISED, VISITATION, RESTRICTED VISITATION  . . . . . .

Let’s go for the toughest of the words “sole legal custody”. .  why do we really need to use words that assume on parent is “sole & legal” and the other is “neither a custodian” or worst “not legal”; Illinois law does not even use the descriptive term “sole” which is a puzzle since most people want “sole custody” The correct Illinois statutory terms are Custody or Joint Custody and even there both terms are in my opinion too harsh and probably unnecessary to accomplish the purposes that such a designation is intended to mean. The “pain” which is inflicted on the parties by the use of those terms would be better served by calling the issue and the resulting agreement a “Parenting Agreement” and talk about the rights, obligations and duties of the parents and how the process of decisions for the day to day management and the extraordinary management of the children

The word “visitation” is another powerful word, one “visits” a zoo or a museum, isn’t it more appropriate and much less volatile to refer to the time with our children as “parenting time” and take the “win or lose” out the description of the time we spend with our children.

It is probably inevitable that the children spend more time with one of the parents and less with the other, but does that make on parent “less” a parent?  If you really want to make the process less combative, labeling him or her as sole custodian sounds like the winner . . . is the other person less a parent.  Suppose you say one parent is the primary residential parent still leaves the other as “non residential parent”. Thus both are parents, but the children spend the work week (school week) in one place and alternate   Perhaps the insulting term of “obligator” as the one almost equally the weekend, extended weekends and vacation time; both parents have the children when they are able to spend more time with them and each parent has a weekend off so to move forward on their personal lives . . . which is presumably the reason the divorce occurred in the first place.  If the parents did not want personal time away from the other, they would still be together.

Another area of pain caused by the “words” is the area of child support.  Both parents are equally obligated to support the children and their activities.  Generally child support is given from one to the other as recognition that the parent who has the children might need financial help with the children’s expenses.  Just because you are no longer living together, should not diminish the child’s life style.  If you take this approach then the labels “obligor” and “obligee” which are contained in most of the court’s child support and withholding forms are unnecessary.

One parent provides financial support to the other for the benefit of the children.  Using the kinder descriptive phrase of “making a contribution to the other parent for the use of the child” eliminates the inference that the “obligee” has a debt to the “obligor” or payee/payor . . . even though one parent writes a check, both parents pay the expenses of the child.

Here is another set of words that inflame rather than help. . Alimony or maintenance . . . we don’t even need to say what is wrong with alimony, the word itself says it all. …”maintenance” why would I want to continue to maintain someone who I don’t want to live with???  Wouldn’t be better to call it ”spousal support” or  even better “family support” or just “support” because he or she was a part of my family and although we no longer live together, I recognize that she or he needs assistance to survive after the breakup of our family.

If we want to take a more humanistic approach to the breakdown of a marriage (or any other relationship) then we need to recognize that it cannot be a “win or lose” contest, but really a breakdown of a “business relationship” which requires that the obligations created by the “business” (the children) need to be able to thrive as they would if the parents remained together; and the parents need to be able to survive the “business” break down and get on with their lives.

I approach each case with an open mind . . . . can we accomplish a termination of the relationship without creating the “war of the roses” or is someone so unreasonable that they (he or she) or his or her attorney needs to be persuaded . . . the Chinese scholar Sun Tzu in his “Art of War” makes it clear that the best way to win the war is to avoid it by convincing your opponent that your position is so overwhelming strong that a battle would be futile.

Arms are tools of ill omens – to employ them for an extended period of time will bring about calamity.  As it is said, “Those who like to fight and so exhaust their military inevitably perish”

A strong stance, without the use of inflammatory language, is my approach to these problems.  The use of certain words not only inflames the situation, but makes the inevitable solution much harder and more painful to reach.

ADG