Children’s Rights in a Divorce

When you’re going through a divorce or custody dispute, your focus is on your rights. Your ex has the same focus. It’s every man (and woman) for himself in this situation. And rightly so—if you don’t stand up for yourself, no one will. However, what is often lost in all of this is your children’s rights.

The Law

Custody laws are not written to highlight children’s rights. They address the parents and what they can seek from the court. The children are minors and have no official say in the case, however their situation, and sometimes their opinion, is very important to the court.

Because of this, courts appoint Law Guardians or Guardians ad litem to represent the children’s interests and to speak for them. Children who are over age 12 have a very important voice in the case, and the older the children are, the more persuasive their opinions will be. But most states do not lay out specific rights that are given to children.

Understanding the Underlying Rights at Stake

Custody cases certainly are emotional and high stakes. Because of this, what is often lost sight of by the parents is what the children are entitled to. Although your state probably does not enunciate your children’s rights, they are understood to have some. Here’s a list of what your children’s rights are in your custody case (the only exceptions applied would be for the children’s safety):

  • To have a meaningful, ongoing relationship with both parents
  • To live in a safe, healthy environment
  • To have their situations, needs, and opinions considered when making custody decisions, without feeling responsibility for anything
  • Not to be used as pawns or bargaining chips
  • To have a childhood that is not plagued by adults’ problems
  • To be adequately financially supported
  • To understand they are not responsible for the divorce or dispute between their parents
  • To receive adequate medical care
  • To be shielded from fighting, arguing, and cruelty between their parents
  • To be able to attend the same school regularly
  • To never be required to carry messages between parents
  • To have some time to spend with friends
  • To live with their siblings, if possible, and spend significant time with half-siblings
  • To spend meaningful time with grandparents
  • To have a parenting schedule that fits their needs first, then the needs of their parents
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Summer Vacations After Divorce

Many children spend large chunks of time with their non-custodial parent over the summer. Whether your child is going across town to spend a few weeks with your ex, will travel to their home state for visitation, or is packing up to go away on a big trip with your ex, preparing for and adjusting to the absence can be very difficult.

Set Your Mind at Ease

When your child is preparing to go away, do some advance planning that will help you feel comfortable with the vacation or the trip. Find out where your child is going and get the contact information. Ask questions so you know what the plan is. If your child will be traveling, get the details of the itinerary. Make sure your ex understands your child’s capabilities when it comes to swimming, hiking, or other activities. If your child is going to another state to stay with at your ex’s home for a few weeks, find out who will provide child care while your ex is at work.

Stay in Touch

If your child is in elementary school, this might be a good time to get him a cell phone. That way, you can reach him directly without having to go through your ex and you’ll have the peace of mind of knowing you can call at any time. Stay in touch, but don’t call several times a day. You have to let go a little and let your child and ex have time together without you involved. A few texts or a call once a day is reasonable.

Pack Well

Help your child pack for the time away. Make sure all essentials are included, including prescription medications, glasses, retainers, rubber bands for braces, summer reading requirements, sunscreen, special stuffed animals, favorite toys, clothing appropriate for the weather, and personal care items. If your child will be traveling, don’t assume your ex will think to pack children’s pain reliever, dental floss, water shoes, or other important items. Talk with your ex about making sure your child follows her routine and takes her meds, brushes her teeth, wears sunscreen, and so on.

Prepare Your Child

Depending on the age of your child and whether he has been away from you before, this could be a difficult separation. Remind him he is going to be with the other parent who loves him and is so excited to be able to spend time with him. Tell him you’ll miss him and he’ll miss you, but you’ll be together again very soon. Do not dwell on how hard the separation will be for you. That is not your child’s burden to carry. Instead, give him permission to enjoy himself and have fun. Be happy he is about to have this experience.

Prepare Yourself

If you have not been away from your child for extended periods of time, the time apart in the summer can be difficult for you to adjust to. Think ahead about how you will use your time. This is a great chance to tackle some big projects around the house or at work. It’s also a great time to do something for yourself, like a wine tasting class, audition for a play, or do some traveling of your own. You will miss your child, but you may find you enjoy the time to yourself as well.

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The Girlfriend

The girlfriend.  She strikes terror in the heart of divorced mothers everywhere.  When your ex gets a girlfriend it’s challenging enough to deal with your own emotions, but when the girlfriend is suddenly a big part of your child’s life, it’s hard to know how to react.

If Your Kids Are Ga-Ga About the Girlfriend

If your child likes the girlfriend, you know that at least things aren’t completely miserable during visitation.  But just because your child is happy doesn’t mean you’re happy.  What do you do if the girlfriend gets too involved with your kids, allows things you wouldn’t, and seems to be creating an emotional attachment with your child?   The first thing to do is just give the entire situation some time.  Girlfriends come and go and this might be over before you can say ‘tramp.’

On the other hand, if the girlfriend has some staying power, there are some things you can do.  First off, don’t talk negatively about her in front of your child.  You don’t want to position yourself as against the girlfriend.  If you have real, solid concerns, the person to talk to is your ex.  If your child is not being properly cared for, it’s on his head.  It can be hard to approach your ex about this without getting confrontational, so you have to stick strictly to the facts and not get caught up in your feelings.

It’s also a good idea to make some inroads with the girlfriend herself.  Try to be friendly and get to know her.  It is possible to develop a relationship with her, and often, if she’s a decent person, she can influence the way your ex behaves, so getting to know her is a good way to change his behavior.

Remember that no one can take your place with your child, ever.  It’s ok for your kids to enjoy someone else’s company.  It’s good for kids to have healthy relationships with other adults.  And if your ex ends up marrying her, it will be a good thing that she and your kids developing a friendly relationship.  However, don’t allow the girlfriend to be in charge of visitation.  That is something that you and your ex must negotiate together.  It’s not her right or place to make arrangements with you.

Another common complaint is that the ex and the girlfriend are too “friendly” in front of the kids.  If you get eyewitness reports of adult behavior, there is a problem.  Some hugging and kissing is fine, but if they’re making out in front of your kids, you need to say something.  Politely but firmly remind your ex of what behavior is appropriate in front of the kids and what is not.

If Your Kids Hate the Girlfriend

What if your kids don’t like the girlfriend?  Some children feel as if their dad spends too much time focusing on the girlfriend and ignores them.  Some feel the girlfriend is mean or doesn’t like them.  If the girlfriend has her own kids, it can complicate things when your children are expected to take part in this new mixed family.  If you feel that your kids’ complaints are valid, it is ok to have a talk with your ex and explain that while you don’t have a problem with the girlfriend, the kids are having a hard time adjusting.  Don’t point fingers or suggest the girlfriend is a hussy (even if you think she is).  Instead make this about how the kids are feeling and say that you want to think of ways together to help them be more comfortable.  Keep your conversation focused on what is best for the kids, and not about your own personal opinions.

No matter what the situation, you have no authority to tell your ex that the girlfriend can’t be there during visitation.  If there is a serious problem with the kind of supervision that is happening, you have to talk to your lawyer and possibly return to court, but you won’t get any support from the court unless you have some solid evidence that your kids are in danger (physically or emotionally) when with the ex and his girlfriend.

 

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Mementos of Your Marriage

When your marriage ends, you work through the emotional rollercoaster and come (eventually) to a place where you’ve recovered (somewhat!) from all the turmoil. You might still be fond of your ex (or you might not be!), but at some point, you move on with your life, leaving the marriage behind you emotionally. What’s left are physical reminders of the marriage that you might want to get rid of, however your children likely have different feelings about them. Here are some tips to help you navigate your way through these tough decisions.

Photographs

One thing that will be very important to your kids are the family photos. Your instinct might be that you want them out of your house and out of your life, but these are important items for your kids. For one thing, it allows them to hang onto the fact that you were a couple, and a family, at one point. Your children likely have some very happy memories that can be relived through those photos. Don’t toss them, instead save them for your kids. You don’t need to leave framed family photos scattered through the house or a photo album on the coffee table (or digital file on the desktop of your computer), but you should try to save many of them for your kids. They will want to look at them from time to time, and that’s ok. It’s healthy for them to want some visual cues to help them process what happened. You may not want to look at the photos with them and that’s ok too. Give some brief feedback and make yourself busy with something else. Plan to pack those photos up and move them out of the house when your kids move out.

Wedding Rings

You likely removed your wedding rings at some point in your divorce process and obviously don’t plan to wear them again. Some women do take the stones and have them reset into a pendant or other piece of jewelry to wear. If this is what you want to do, you should. You can always pass that new piece of jewelry on. Some people sell their jewelry and that’s an option that is good if it works for you. Be aware that your children (daughters, most likely) will at some point be curious about the jewelry. Some children feel strongly that they would like to have the jewelry or even use it for their own weddings. If you feel uncomfortable with this, be clear that it belongs to you and you can do whatever you want with it. If you refashion it into something else, make it clear that item is a piece you will pass down. If you sell it, you might buy something else with the money that can have some importance for your family. If you need the money to pay bills, that’s fine as well. There are plenty of other items your kids will be able to hang on to.

Mementos

If you’re living in the home you shared with your ex, you probably still see him or her in every corner. Many people remodel, redecorate, or at least make some changes in their home once they are divorced. So what do you do with all the stuff that reminds you too strongly of your ex? Ask yourself if these items will have meaning to your children. A collection of shells you collected on the beach as a family or a souvenir from a family trip to the Grand Canyon are things that have importance to your children. You don’t have to leave them prominently displayed in your living room, but maybe your children would like them in their rooms. These items can also be packed up and stored away until your children are grown when you can hand it all over to them and let them decide what to do with them. This doesn’t mean you should keep every single item—be selective and space-conscious. If you need to do a real purge, ask your kids for their input on what they might like to save.

You may also have notes, letters, cards, and other personal items that were meaningful in your marriage. You are completely within your rights if you want to toss or destroy these, but it’s possible some day your kids might want to see them (if they are appropriate to share). It’s fine to store them in case your kids have an interest in them, but it’s also fine to just get rid of them if you need to.

Strong Feelings about Unexpected Things

All of the things we’ve discussed so far are things that clearly have emotional meanings. Don’t be surprised if your children have strange, unexpected attachments to other things you could never have predicted. The recliner the other parent often sat in, the pile of unused lumber next to the garage, the dusty set of glass jars on a kitchen shelf—things like these can be symbols of the other parent and children can get very upset if they are moved, disposed of, or changed. If your child has a sudden outburst about something unexpected like this, take the time to talk it through. Why does this object or objects matter to her? What do they symbolize? It’s your house and you call the shots, but if there is a compromise, look for it. Would your child like to keep the item (if it’s small!) or some portion for herself? This doesn’t mean giving in and not changing a thing to preserve your child’s fantasy that you will reunite. It’s important to be very clear about that and the fact that as the adult in the house, you make decisions about the home. That being said, having some sensitivity to your child’s feelings will make everything smoother.

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Termination of Parental Rights

I am asked a lot of questions about parenting after divorce. People have presented me with some pretty unbelievable situations, but there is something that I am asked about far more often than I would have expected – parental termination. Parental termination is a legal process in which a parent’s legal rights are taken away. In the eyes of the law, that person ceases to be that child’s parents, and has no more rights or responsibilities towards the child.

Abuse or Neglect

The most common situation in which a termination happens is in an abuse or neglect proceeding (not a divorce!). A parent is determined to be such a danger to the child’s physical, mental, or emotional health that the parent is completely removed from the situation and the child’s life with no further contact permitted. Even in these kinds of cases, it is considered an extreme measure and is one that takes the court system months or years to arrive at after every other alternative is tried first.

Adoption

When a parent’s rights are terminated in an abuse or neglect situation, the child is placed in foster care with adoption as a goal (at least for younger children). When a parent who is divorced and remarried wants his or her new spouse to adopt the child, a stepparent adoption must take place. However, this can only happen if the other natural parent consents to the adoption by giving up his or her rights to the child, or has his or her rights terminated by the court. A termination in this situation, when it is warranted, is often a good thing for the child. The child is adopted by a loving and involved stepparent who fills those parental shoes in the child’s life.

Other Terminations

Unfortunately, I am often asked about termination of parental rights in other situations. These fall into two general categories: fathers who don’t want to pay any more child support and want to give up their rights to get out of it; and mothers who want to find a way to terminate the father’s rights to get him out of her life (I have never been asked these questions with the genders reversed or in same sex couples, although my answer applies to all situations).

Both of these situations are deeply disturbing. It is appalling that a man would be willing to break all ties with his child and in effect say ‘I no longer want to be part of your life’ just to save some bucks. The damage that is caused by this act is irreparable. The child is clearly told he is not important and does not matter – and that money is of more importance than him. It is disgraceful and appalling. Even if a man has previously had little contact with the child, this legal maneuver still sets the child up very clearly as someone who is not wanted.

The other situation is just as disturbing. There are lots of people who have very difficult relationships with their exes. And of course there are women who have been placed in great danger by a man and want no contact. However, if a court has decided that it is appropriate for that child to have a relationship with that father, the mother must put her personal feelings aside and find a way to make it happen. Yes, it can be a pain sometimes to deal with his BS. Yes, visitation can be an inconvenience. However, to seek to terminate a father’s relationship with his child just because you don’t like him or don’t want to have to navigate the situation any more is inexcusable. Even if that man fails to exercise his visitation, he still is connected to that child and there is a chance that someday he will come to his senses and reestablish a connection. A woman who proactively seeks to remove the father from the child’s life without a good reason is creating a trauma for her own child. The child may one day as an adult feel that this choice was harmful.

Courts Weigh In

There are certainly situations in which termination is appropriate and warranted and courts will respond in those situations. However, in other scenarios, it is very likely the court will not grant the termination that is being sought. In the eyes of the court, a parent and child have a connection that should not be severed without a very good reason. Unfortunately, there are times when courts will grant terminations if both parties agree – the father to get out of child support and the mother to get him out of her life.

Parental termination is not something that should be considered lightly or without extreme circumstances.

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