Mutually assured dysfunction

Posted Friday, October 9th, 2015 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Sadly, there are way too many custody in which both parents have “issues” that would lead their fitness to be questioned if the other parent raised them. Much like the United States and USSR, which stockpiled nuclear weapons they hoped never to use as a “mutually assured destruction” deterrent, these parents stockpile–but typically do not or cannot use–evidence of the other parent’s dysfunction as a way inhibiting the other parent from using their dysfunction against them. While it might be better for their children if these parents fixed their respective dysfunctions, this would require actual effort, and dysfunctional parents are rarely willing to put in the effort.

This is one reason the family court routinely appoints guardians in contested custody cases. See S.C. Code § 63-3-810(A)(1) (“In a private action before the family court in which custody or visitation of a minor child is an issue, the court may appoint a guardian ad litem only when it determines that without a guardian ad litem, the court will likely not be fully informed about the facts of the case and there is a substantial dispute which necessitates a guardian ad litem…”). Experienced family law attorneys who notice that both parents have substantial fitness issues will often deliberately not raise either party’s fitness issues in the hope that no guardian will be appointed and in the (smaller) hope that the client will fix the dysfunction first. Meanwhile the children suffer.

I am amazed at how often folks in custody disputes attempt to muddle through without fixing their parenting dysfunctions. They will complain to their attorney about the other side’s dysfunction without being willing to fix their own dysfunction. An inexperienced or overly aggressive attorney will raise the other party’s unfitness to the court–at which point the other party will raise one’s own client’s unfitness to the court, with the result being the child is placed with a third-party. An experienced attorney will tell the client that this unfitness must be ignored until the client remedies his or her own fitness issues. Such counsel is counter to every justice-seeking impulse one has as an attorney and as a parent–making the advice extremely uncomfortable to give. However it’s the only good advice to provide a client unwilling to address his or her own lack of fitness.

A military defense system predicating upon complete destruction of both sides was insane and immoral. So too a custody strategy premised upon both parties remaining dysfunctional. Such clients are among the least pleasant and most exhausting to represent. Pity their children.

6 thoughts on Mutually assured dysfunction

  1. Mutual assured destruction (MAD) as a strategic defense strategy was and still is very disturbing. It was portrayed poignantly in the movie Failsafe (1964 and 2000) and satirically in the black comedy Dr. Strangelove (1964). Not only is this disturbingly insane and immoral; it was and continues to be obscenely expensive to the government’s partaking in this standoff of force. While the strategic arms limitation talks (SALT) appreciably reduced the number of weapons in the stockpile, it did little to reduce our ability to destroy every living being on this planet. Whether it has been the MAD doctrine, or something else miraculous, mankind, whom has a history of violently fighting and destroying itself, has withheld using the ultimate weapon for the past seventy years. Let’s continue to hope, believe, and pray we will not spoil that record in the future.

  2. George says:

    I think Mr. Hudson missed the point.

    While the threat of mutual nuclear destruction has worked in the arms race (we’re still here), it was, and is, an insane principle to base defense on (and likely why it worked). While it worked to keep the Cold War from becoming hot, the populace of both sides lived in fear. There are better ways to live.

    In Mr. Forman’s use of it as an example, it applies to the children in the marriage. The idea is that while the parents argue, accuse, and litigate, it is the children that pay the highest price for their parents’ actions. It is the parents that mutually assure the destruction of the children’s lives in forcing forward false accusations, and in using the children as pawns during the divorce.

    It is best for both parents to protect their children from the effects of divorce throughout the litigation. The children are innocent, but are too often employed by parents as they try to further their case. While the short term goals in the divorce may be reached, the long term and ultimate goal of raising well adjusted adults is missed. At some point the children will be old enough and wise enough to understand both sides of the story, and will likely regret, or worse, resent, the parents for choosing to put them through it.

    Children need safety and security. A divorce may be an unavoidable fact of life, but parents should honestly and earnestly strive to keep their children from the stresses of it. It is irresponsible to do otherwise.

  3. Vanessa says:

    Yes Mr Hudson was a bit “off piste” but if you take your last paragraph and for “children”, substitute – the “majority of us”, for “divorce” read “cold war”, and “parents”, read “super powers”, it’s just about there!

  4. George says:

    Ms. Vanessa,
    While what your suggested substitute wording works in my earlier statement, your word substitution not only changes the meaning of what I wrote, but also changes the very topic initially addressed by Mr. Forman. I don’t profess to know Mr. Forman’s formal opinions regarding nuclear war, but I do believe it was only used as a universally understood example of mutual destruction, and that his use of it was only to be applied to the opinion he expressed about parents involved in divorce seeking to “win,” versus the same parents seeking divorce, while also truly seeking to safeguard their children from the consequences of the divorce.

    There is commonality between children’s protection and the protection of populations under threat of nuclear war. However, populations include adults as well as children, and it is the responsibility of adults to act as such.

    For your reference of my view, I made a comment that included the word “consequences” to someone once. The person I made this statement to thought I was implying actions I would take. Once I explained the definition is simply “the results of an action or inaction,” my statement had a much simpler and had a simple meaning- as I had intended. Words spoken or written should be chosen carefully, and with the ability to defend statements fully whether in private, in public, or in court.

    I suggest anyone responding to opinions which cite firearms, climate change, nuclear war, or other topics of political interest fully read and understand the context in which opinions are written.

    “It is better to be thought a fool than to open your mouth and prove it.”

  5. MJ Goodwin says:

    From a Guardian ad Litem perspective, I often ask myself if the child is better off with the dysfunction to which they are born, and probably accustomed, or better off with strangers (foster care), which may have similar or even worse dysfunction. There is an argument to be made for the devil you know. Unless there is a clear danger to the children, I will often suggest to the attorneys of mutually dysfunctional parents that they find some way to co-parent rather than risk a third party custody situation. Often times, a co-parenting situation will keep the dysfunction reasonably in check. Of course if there is violence or other danger, this approach will not work.

  6. Roy Wells says:

    Growing up in a dysfunctional can be tough. It is even tougher when you have two dysfunctional families with stepparents. I had an evil stepmom and a parade of clowns for stepdads. I always tried to think of ways to get rid of my stepmom but I never acted on any of my plans. I found that it was therapeutic to write stories that would lampoon them. I have a new story called My Psycho Family! It is free if you have a Kindle and Amazon Prime. I hope you enjoy it.

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