Managing Your Client’s Emotions

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As a family law practitioner, I have the opportunity to work with people experiencing the most emotional time of their lives, especially during custody litigation. The personal ideology I try to convey in custody cases is “where there was once love, there can always be love (or at least civility); it may simply take a different form.” The problems arise when clients believe someone has to either win or lose. With the proper mentality, however, it is possible for both parties to succeed and be happy. I speak from experience, as my parents divorced when I was 3. At the time of their divorce, my parents made sure to put their personal feelings of resentment aside to ensure my relationship with them was not impacted.

Forgiveness for Perceived Wrongs

One tool in managing clients’ emotions is teaching them the art of forgiveness. In child custody litigation, parties thrive in learning to forgive their spouse and have an amicable relationship. I remind clients that it is in the child’s best interest to do this and the act of forgiving will emotionally set them free. They need to give up resentment toward the opposing party and fight the urge to retaliate. I can’t stress the freedom that surfaces in forgiving the other person of their perceived wrong, a lesson my mother taught me as a child.

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If You Pursue Revenge, Dig Two Graves

If emotional freedom isn’t enough of an incentive, remind your client that forgiveness, or lack thereof, has a great effect on the children, as well. Children feel their parents’ resentment and desire for revenge. They also feel their parents’ willingness to work together.

I have litigated custody cases where one parent, in pursuit of revenge, lost custodial time with their children. The parent refused to pay child support, which was ultimately admitted into evidence and adversely affected his case. In other cases, parents, who may otherwise be esteemed pillars of the community, allow so much bitterness to consume them that they have written or said hostile/violent comments to the other parent. These outbursts may be admitted into evidence and influence the fact finder’s decision.

Shockingly, some parents speak pejoratively to the children about the other parent. As stealthy as these parents try to be, their demeaning commentary is oft en made apparent to the powers that be.

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Judicial officers consider abusive or acrimonious acts between parents when making custody determinations because, according to Family Code §3020(a), it is the public policy of the state to ensure each child’s health, safety and welfare be the court’s primary concern in determining the child’s best interest when making physical or legal custody and visitation orders.

Hostility Can Adversely Affect the Case

One leading case in family law is Marriage of LaMusga (2004) 32 Cal.4th 1072. The case involves a custody battle where, due to the mother’s unresolved feelings toward the father, the court found the minor children felt unwarranted animosity toward the father. Id. The child custody evaluator, Dr. Philip Stahl, found the children demonstrated “extreme polarization, overindulged emotions, and significant struggles emotionally” due to the mother’s personal feelings toward the father. Id. at 1082. Additionally, Dr. Stahl noted that the mother was contributing to alienation between the father and the children, although it was covert and unconscious. Id. Even though Dr. Stahl noted the father had flaws himself, he ended up recommending against the mother’s request to move with the children because he did not believe she was in an emotional state to facilitate a healthy relationship with their father. Id. at 1083. The court found that although mother’s proposed move was not in bad faith and she was not purposely trying to alienate the children, she was trying to “align” them with her. Id. at 1085.

The appellate court correctly noted: “[T]he superior court’s function in determining custody is not to reward or punish the parents for their past conduct, but to determine what is in the best interest of the children. Clearly, the Court must consider the past conduct of the parents in fashioning a custody order that serves the best interests of the children.” Id. at 1094.

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Forgiveness Clears the Path Forward

Relinquishing resentment and hostility toward the opposition facilitates a clearheaded approach to the perceived problem that must be overcome in the litigation or transaction. Sometimes what appears as our worst nightmare, may really be a gift. Often, the difference between those who succeed and those who don’t is in understanding this phenomenon and using adversities to their advantage. In going through my own parent’s divorce, rather than viewing it as a nightmare while growing up, I used it constructively thereby making it a gift. It taught me resilience, compassion and led to my decision to help people as a family law attorney. After all, life is, in essence, a series of learning opportunities (sometimes disguised as hardships). Megan Green

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