How to Protect Your Children When Your Marriage Is Ending

Divorce is almost never easy, especially when there are children involved, and it’s often seriously rancorous. After seeing your kids every day, you suddenly face the prospect of becoming peripheral to their lives; this can be incredibly painful. The temptation is to fight for every shred of time, every bit of contact, even if it means taking your custody dispute to trial. But my advice is to resist this temptation if at all possible, because going to court is likely to create more damage than you anticipate — to you, to your children, to your relationships, even to your faith in humanity.

Some lessons from divorce court that can help parents and kids alike:

Parents understandably harbor the hope that in a trial, wrongs will be righted. Unfortunately, a trial is more a battlefield than a forum for honest reckoning. No matter how confident you are, or what your attorney tells you, a trial is never a sure thing. At trial, your words, your story, and your issues become part of a nebulous, often shifting narrative determined by the rules of evidence, the skill of your attorney, and the predisposition of the judge. In a trial it’s not the whole truth that comes out, but simply one version of the truth — a version you may not necessarily like. The best way to maintain control over the outcome of your dispute is to settle it outside of court.

At the end of the day, all the decisions about your relationship to your children will be made by a stranger, someone who has only known you for a few days, who only knows those aspects of you that conform with the rules of evidence, who only knows how you act in the most stressful of situations, and who only knows a version of you that has been distorted by the attorney on the other side of the case. Even more important, these decisions will be made by someone who has likely never even met your children.

Each litigant will attempt to spin the narrative in his or her favor, and whether that spin ultimately benefits you or your ex-spouse, both of you will be frustrated. We know that post-marital conflict is terrible for children — yet it’s the almost inevitable product of a trial. Testimony usually resembles nothing so much as a negative campaign ad — and you know how accurate those are — so it will be difficult, if not impossible, to avoid the resulting increase in animosity between you and your ex.

A good attorney will help you recognize not only the strengths of your case but also its weaknesses. Unfortunately, not every lawyer will be entirely honest with you about the more negative prospects of your dispute, so it’s incumbent upon you to take a good hard look at yourself before deciding to go to court. If you have to learn things you’d rather not know about yourself, it’s better to do it in a setting where your future and that of your children are not in the balance. The version of your marriage that emerges at trial may be a very painful exercise in self-discovery; when you anticipate what you can win at trial, you should also think about all that you could lose.

There’s plenty of evidence that kids do better when they have access to both parents. But at trial, the goal of both sides is to persuade the judge that the children should see less of the other parent. Before you buy into that and convince yourself that your spouse is a “horrendous” parent, remember that if you had stayed married—if you had found a way to work it out — he or she would still have regular access to your kids. When people are married, nobody restricts access to a kid just because a parent isn’t perfect. It’s only in custody fights where the bar is set so high.

Try to avoid setting unrealistic standards for access. Don’t buy into the artificial parenting standards that litigation creates. Accept your own flaws and those of your ex-spouse; try to give your kids as much contact as possible with both of their parents. That’s best for everyone — you, your children, and even your ex-spouse, whose happiness will have a direct, beneficial impact on your kids. Remember, your ex is someone you used to love, someone with whom you chose to have children, and someone who, in the great majority of cases, based on real scientific data, should remain an important part of your children’s lives.