Like surgery on suicides

Posted Sunday, May 16th, 2010 by Gregory Forman
Filed under Attorney-Client Relations, Child Custody, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

In representing parents who are unreasonably resistant to the other parent’s relationship with the child, I often feel like I am performing surgery on suicides, with my clients tearing open their sutures as quickly as I can close their wounds.  Generally I’m not such parents’ first attorney and rarely will I be their last.

In these situations I am very mindful of Watson v. Poole, 329 S.C. 232, 495 S.E.2d 236 (Ct.App. 1997), in which the South Carolina Court of Appeals ordered the transfer of custody from the mother to the father because of the mother’s repeated attempts to convince the world that father was sexually abusing their child.  Thus when representing a parent who is resistant to the other parent’s relationship with the child my concern is that continued resistance may lead to my client losing custody.  Another fear is that such resistance, if the court perceives it as being without just cause, may lead the court to be blind to the other parent’s potential danger to the child.  Given that such parents typically retain me to further limit the other parent’s time with the child, a result in which the other parent ends up with even more time with the child, or even custody, is one I need to be extra cautious to avoid.

When beginning my representation of such parents, I always consider three possibilities.   The first is that my client has an uncontrolled antipathy towards the other parent, generally caused by an inability to separate the anguish and disappointment that comes with the end of the romantic relationship from the need to cooperatively coparent a child.  The second is that my client suffers from some type of neurosis such that any loss of control regarding the child–and a court order dividing the child’s time between two parents is a significant loss of control–is going to cause acute anxiety.  The third is that the other parent truly represents a danger to the child.  The problem for any attorney representing such parents is figuring out which of these three possibilities is actually happening.  This can be especially vexing as there can be a mixture of all three.

No client likes being told that his or her antipathy towards the other parent is unreasonable.  Telling a client that the child does not need “protection” from the other parent but that, instead, it is the client whose attitude needs to change is fraught with difficulties.  The client will normally treat such advice as criticism rather than advocacy.  Typically such clients will present numerous friends or family members who support their view of the other parent.   As hard as it is for my clients to hear it, I typically counsel them to be patient as I try to develop evidence from non-biased observers to substantiate their fears.  Again my concern is that the friends and family members are merely acting as an echo-chamber for my own client’s issues: if dad is telling the world that mom is abusing pain killers, dad’s friends and family are going to support his views and dad is going to see such support as validation.

Yet, there are enough cases in which the other parent is truly a danger to the child that such advice can’t be given lightly.  Further, there have been a few cases in my career in which it took time for solid evidence of the other parent’s unfitness to develop.  If my immediate counsel to such parents is that there is no evidence of the other’s unfitness, and that it is their attitude that needs to change, I am doing a disservice to these clients and failing to protect their children.   I envision my counsel as being to not get ahead of the parade: if the counselors, pediatricians, social workers and teachers don’t believe there’s a problem with the other parent, I’m very cautious about claiming otherwise (unless the other parent’s family also tells me there’s a problem).  Yet such advice can often increase the anxiety of an already anxious client, who sees further delay as causing harm to the child.

Advising such patience sometimes doesn’t take.   I’ve been involved in cases in which visitation exchanges cannot occur without the police being called or in which any rash on an infant’s genitals is going to be reported to child protective services.  I can recommend steps to these clients that will reduce the chance that the court believes they are unreasonably resistant to the other parent but they ignore my advice and continue to “protect” the child by reporting the other parent to the police or protective services.  Such cases lurch from “emergency” to “emergency” without ever getting resolved.

As an attorney who loves doing family law because I enjoy helping parents or spouses move from instability to stability in their intimate relationships, I try to avoid cases in which I spend a great deal of time–and my clients spend a great deal of money–without moving towards a stable resolution.  While I could fully support my law practice with ten such cases a year, my hair would probably be ash grey and my heart would probably seize within a year from the stress.  There is no joy in performing surgery on suicides.

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