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Don’t Push Each Other to the Limit

A Tampa television station recently reported on parents seeking to relinquish custody of their children, in order to get them mental health services within Florida’s dependency system. Although fights in Florida family courts between parents are more frequently over who gets custody or more time-sharing, rather than parents relinquishing custody, the Tampa story reflects how far parents are pushed sometimes in trying to provide for their children.

A parent or any person pushed to their limits will sometimes try almost anything, which raises the question – does the normal process in divorce court fights – accusations, attacks, financial and emotional pressure, make sense as a way to handle family disputes, especially involving children.

Although many attorneys and parties in divorce or other family law litigation seek nothing more than to resolve the case reasonably and fairly, the strategy in litigation can often be to pressure the other side from as many angles as possible. It’s viewed as a war – in fact the book The Art of War by Chinese author Sun Tzu is often viewed as a template for litigation, or important reading underlying the approach of good litigator. I recall also a line from a handbook on negotiation, I believe it was a Florida Bar continuing education publication, describing the essential elements of negotiation as something along the lines of communicating to an opponent how you can harm them, and then how you can help them.

Often in divorce litigation the attorneys and parties will seek to put the other side at risk financially and emotionally, based on the possibility of negative outcomes if they continue their litigation position. The Wheel of Power and Control developed by the Domestic Abuse Intervention Programs in Duluth, Minnesota refers to emotional or financial threats and threatening behavior, threats to take the children away, withholding money and putting under financial pressure, as examples of or along the continuum of abusive behavior; which leads in my opinion to an accurate conclusion that divorce litigation, although not always, is often or can be an intentionally abusive process.

There is some written over the past few years that people can be too sensitive or politically correct. It is true there can be struggle and often needs to be hard work in life. I had a political philosophy professor in college who used to refer to the phrase, “you can’t Immanentize the Eschaton”. I think the phrase has been used to mean different things over the years, but from what I remember my professor used it to mean you can’t create heaven here on earth, which (without addressing religious concepts) I’m guessing is pretty much a true statement.

So, this is not to be idealistic or naive, but is the best approach in family law to move aggressively against the other spouse or parent out of anger, seeking to beat them or win? We all need to protect ourselves, but an answer I saw by Congressman William Hurd, in response to a question basically inviting him to attack people who held a position contrary to his, was instructive – he declined to take the bait, and instead of attacking described what he thought would be a more positive approach by the other side – he explained that there was already too much rancor and conflict, and that he wasn’t going to participate that.

There is an alternative to adversarial litigation, Collaborative Divorce.


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