Colorado Divorce Law Puts Children First
By Janna Graber
From Chicago Tribune
No divorce is easy, but when Helen Shreves went through it three years ago, she employed some techniques that she believes made the transition smoother for the whole family. Shreves, a Denver attorney/mediator, and her ex-husband, Rep. Ken Gordon (D-Denver), agreed to cooperate in putting the needs of their son first.
“There were hurt and hard feelings,” Shreves admits, “but we kept our son foremost. We set up a decision-making process, so that no one was a winner or loser. We both were still parents and had mutual decision-making responsibilities.”
That cooperative parenting effort helped to ease the passage into life after divorce, something that is hard for many families.
“In my work (as a mediator), I’ve seen parents fight like crazy over sole custody vs. joint custody,” Shreves says. “Even the words were so divisive. The word `custody’ makes people think you were a bad parent if you didn’t get custody. We need to reduce the psychological barriers of working together for the good of the child.”
Shreves was so concerned about the divisive nature of the divorce vocabulary that she began a grass-roots campaign to change it. Shreves worked with psychiatrist Dr. Dana Cogan and attorney/mediator Joan McWilliams to draft a bill that would change Colorado’s divorce terminology as well as make divorcing couples more aware of their parental responsibilities.
The result of their efforts, a bill sponsored by Gordon, became Colorado law and took effect Feb. 1. The new law not only changes divorce terminology (“parental responsibilities” replaces “custody”), it also requires parents to file a court-approved parenting plan as a piece of the final separation agreement.
Other states have already expressed an interest in learning more about Colorado’s law, which is modeled after one in Washington, and Ohio, Vermont and Maine have made dramatic changes in divorce terminology.
The law’s goal, Cogan says, is to reduce conflict between divorcing parents and to put the needs of the children first.
“We hope this will re-orient people, and provide them a different way of thinking regarding their children,” Cogan says. “Up to this point, children and their needs have not been properly addressed. This law creates a change in thinking both in the parents and the legal profession.”
McWilliams, author of the booklet “Creating Parenting Plans That Work” (Bradford Publishing, $12.45), says that children aren’t assets to be won or lost during divorce.
“The courts and legal profession need to help parents knowledge that they are the ones responsible for their children,” McWilliams says.
“There is a big gap between the legal system and the child who is voiceless and invisible. Parents are still parents, even when they divorce. They must define their parental partnership.”
The best way to do that, she says, is to write up a parenting plan that lays out each parent’s responsibilities. Parents can negotiate this themselves or use a mediator. If parents can’t agree on a plan, the court will step in and formulate one, sometimes acting on the advice of mental-health professionals or child advocates.
A parenting plan is a living, changeable business plan for parenting, McWilliams says. She suggests that the plan cover three main areas: decision-making (how the parties will make decisions regarding the child), parenting time (how and where the child will spend his or her time) and dispute resolution (what happens when parents don’t agree).
A sample plan might cover what religion the child will be brought up in, which parent is responsible for health care, which parent is paying for school, or how vacations are to be spent.
But McWilliams stresses one important factor of the decision-making process: “Listen to your children. They must have an input in structuring parenting time.”
But the new Colorado law, intended to reduce conflict during divorce, has also been criticized.
Attorney Lynne Gold-Bikin, former chair of the family law section of the American Bar Association, thinks parenting plans should not be mandated.
“Not every divorce calls for a parenting plan,” she says. “We’re taking too much discretion away from the judges.” Gold-Bikin also wonders about judges’ ability to formulate a court-ordered parenting plan.
“I’m not sure judges are properly trained to evaluate the impact of a parenting plan on children. Can you predict how a custody schedule will impact kids?”
Other critics wonder how the courts can enforce such a detailed parenting plan. But proponents are quick to point out that parenting plans are just as enforceable as any other court order.
“You can file contempt charges,” Shreves says. “You have all the legal remedies available to you as under previous law.”
“I think courts will stand behind these plans. If one parent isn’t living up to their responsibilities, the first step would be to mediate, and the second step would be to take it to court.”
Judith Wallerstein, an expert on the long-term impact of divorce on children, believes that any legislation that improves terminology with children in mind is a step in the right direction but that it is still not enough.
“These laws are avoiding the main issue, which is helping the child feel loved and respected by both parents,” Wallerstein says. “Fighting over the child has the opposite effect.”
While Wallerstein says she is not against divorce, she calls it a “serious crisis” for children.
“It doesn’t matter what you call parenting time,” she says, “it matters what happens during that time. Parenting after divorce is much more complicated and demands more effort. People aren’t always aware of that. Parents should go home and talk to their kids when setting up a parenting plan. Children should be involved. Ask what they think. If they are younger, at least tell them about your plans so they don’t feel helpless.”
Wallerstein conducted a 25-year study following children after divorce. Her findings, which illustrate the devastating effects divorce can have on children, have sent shock waves throughout the legal community. Wallerstein found that while divorce has long been viewed as a time-limited adult experience, it is a life-long cumulative experience for the child. The study showed that as the child progresses through each developmental stage, the impact of divorce changes and must be experienced again.
Such findings, Wallerstein believes, should be a wake-up call for the American legal system.
“Under American law the child has no rights,” she says. “There was a (1989) United Nations charter that specifies the rights of a child, but the United States refused to sign it. Australia signed it, and they’ve used that to give children standing” during divorce.
“The major issue for plans made for children after divorce is that there should be a built-in provision for child input as the child gets older,” Wallerstein says.
Mary Ann Mason, professor of family law at University of California at Berkeley and author of “Custody Wars” (Basic Books, $23), agrees. She believes that all parenting plans should have a developmentally centered approach to child-custody arrangements.
“Parents should review their custody arrangements during the tender years, then again at age 7 and age 12. Adolescents should have a say in how their custody arrangement works,” Mason says.
Although parenting after divorce may be difficult, it can bring about good changes, McWilliams says.
“If you haven’t done (parenting) well before, you can stop and change that. You can write a new parenting plan.
“My suggestion is when parents separate, they make a commitment to put their child first and to separate anger from that relationship. Then, look at how they parented during the marriage. See what worked, what didn’t and what needs to be changed.”
The most important thing to remember, McWilliams says, is that parents can always modify their parenting arrangement, even years after the divorce.
“Modify your separation agreement anytime, and revise what you’re doing,” she says. “What was in the past is done, now start looking to the future. Ask yourself, What is that future going to look like?”
If parents can agree on a parenting plan for their children, it will reduce future stress, McWilliams says.
“In the end,” she says, “the children will benefit.”