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Prevention - Attorneys
Attorneys and therapists are the front line professionals in most custody battles. They too, have an obligation to educate their clients that divorce involves anger, rage, upset, distress, loyalty binds, and kids and parents who manipulate each other in crisis. The clients must be helped to understand the normality of these themes and to learn the strategies for controlling them and only outgrowing them. Alternatives to intense battles, vindication or retribution must be explored. Clients must be educated as to the possibilities for "humane divorce". Attorneys and therapists must educate their clients throughout the divorce process about the cost to children of warfare and the cost to children if they don't have access to both parents if access is possible.
It is the duty of the attorney to advocate for her client. Good representation will include assessing the family system clearly from the client's point of view, and to advocate for that client's interests zealously. However, we believe that such zealous advocacy must occur in the context of the client's long term interests as a member of a restructuring family system. Whatever the outcome of the immediate litigation, the client will remain in the family system with contact and relationships with all other members of the family system for the rest of his life. Long after the lawyers are gone, the client will live with the effects of the positions taken and the statements made in litigation. The client may later regret the vitriol and the permanency of the damage done by a high conflict divorce.
It is the attorney's job to help the client through the immediacy of the pain and the rage and to help the client see the long term view of her family relations. Allowing voice to be given to rage, anger, fear and even vengeful fantasy can be helpful so long as it is not acted out in behavior. and innocent victims are not hurt. Attorneys must help clients see both short term and long term interests in terms of family relations and must not themselves confuse their role as "counsellors" of law who listen and counsel wisely and their role as champion and advocate for the client.
Attorneys must also be acutely cognizant of the divorce impasse system itself and the important part they play in it. Maligning the other spouse, requiring the client to have no further contact with the spouse, prohibiting any temporary agreements or a temporary separation can interfere with a real resolution of the conflict. Zealous advocacy is a poor excuse for actually damaging a client's long term familial relations.
Alienation cases present the greatest difficulty for attorneys who are asked to represent a parent who wishes to excise as much as possible the other parent from the life of a child. In the advocacy, role, an attorney is bound to allow the client to define the goal of the representation and to advance that position zealously. An attorney is also bound not to bring, or defend frivolous actions." We believe that actions harmful to children could fall under that prohibition.
If alienation is in progress, accepting at face value all derogatory comments about the ill serve both the client and the attorney, as the client's judgment is emotionally tainted. It is incumbent on the attorney to sufficiently explore with the client his motivation and the reality basis of his beliefs before litigation is undertaken. Careful and thoughtful exploration with the client about the good times in the marriage and the positive parenting traits of the other side will give the attorney much information about both parties, and will tell the attorney just how balanced a view the client holds.
We believe that under no circumstances should an attorney encourage a client to gain information about the opposing party from a child. Nor should an attorney interview a child even if the child is unrepresented. The willingness of a client to directly involve a child in the litigation should be a red flag that the parent may well be using a child to further his or her own agenda, even if the child is apparently acquiescent.
It is crucial to note, however, that we are describing cases where alienation exists, and other forms of abuse, such as physical or sexual abuse, do not. If abuse is honestly suspected safety of the spouse or children becomes paramount and full evaluation by a competent professional is a necessity.
The grounds for divorce fall into two categories: no-fault and fault. The no-fault category means that the parties have irreconcilable differences. In New Hampshire the fault category alleges one of the spouses engaged in adultery, was criminally convicted or incarcerated, behaved with cruelty, abandoned the marriage or is an alcoholic. When filing a petition for divorce the grounds for the request must be listed in order for the case to be filed with the county clerk.
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