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What If I received Bad Legal Advice During My Divorce?

For those who have been through a divorce, you have learned the hard way all that is involved in the divorce process.  Some of you may have even had a bad experience with one of the professionals involved.  Of course you are thinking that I am referring to the “opposing” attorney, but I am not.  Your own attorney is capable of fuelling the conflict as well.  One way this may happen is when they give you advice that may harm your children or reflect badly on you in court.  Likewise, what if a “helpful” friend or even your attorney gives you bad advice? Bad advice may work against you. Imagine they tell you:

1. “We should file for sole custody.” Make sure your attorney explains the options and defines terms with pros and cons so you may make an informed decision. Otherwise, you will not even know how filing for sole custody may reflect upon you. If there is nothing significantly wrong with the other parent, requesting sole custody versus “primary custody” may be used to present you as uncooperative and worse yet, like a parent who will attempt to alienate their children from the other parent.  Unfortunately, the other parent may tell your children that you are attempting to take them away from him/her.

2. “Get your children into counselling right away.” Your attorney suggests you take your children to a therapist with clear intent to see if the counselling will reveal information about the other parent that can be used in court. If the primary reason is to obtain incriminating information, the therapist may determine that you are manipulative rather than sincerely interested in your children’s mental health. If you end up with a guardian or a custody evaluator on your case, then this information will be shared and may impact negatively on their final custody recommendation.  Your child may believe their counselling is confidential and an emotionally safe place.  If the opposite is true, this will harm your child’s sense of trust.

3. “Just keep their therapy a secret.” This is never a good idea.  It will backfire on you as a disrespectful parent.

4. “Tell the children not to tell their mother about the counselling.”  Telling your children to keep any secrets from the other parent is a BIG mistake.  It puts a tremendous loyalty bind on your children and does not reflect well on you. Furthermore, your children will be anxious about slipping and may get into trouble from the other parent.  This is a no-win for your child.

5. “No matter what, do not leave the marital home!” Family attorneys typically instruct their clients to remain in the marital home-no matter what! Sometimes this recommendation causes significant distress for your children. Although you need to be careful and consider your attorney’s recommendation, recognize that you are far more invested in your children’s welfare than your attorney.  (Unless you are in the collaborative process of divorce, you attorney is only advocating for you- not for your family)  Remaining in your home may create tremendous stress on your child. Furthermore, if you remain and there is any chance of domestic violence, this decision could make your case go right out the window.  In high-conflict situations one parent may create a condition and claim violence simply to set up the other parent to go to jail and/or have a protective order.  This certainly will not help your case or your children!

Then there are counselors and well-meaning friends who may also give you bad advice that could back-fire.  For example,

6. “Go ahead and make the parenting decision without the other parent.” If your case is a post-divorce custody matter, making a unilateral decision is a major problem.  In some situations, the attorney may not be recommending you make a unilateral decision but they have not stressed the necessity of consulting with the other parent. Since most parents share joint “legal” custody, parents are required to make all major, nonemergency decisions like medical, counselling, education, religion and extracurricular activities together.  If counselling is recommended by your attorney or any other professional, then you cannot make this decision without the other parent’s involvement.  Any experienced therapist working with children should recognize that they must make sure both parents are advised prior to seeing the children for counselling.  In Georgia where a “final say” clause is included for parenting disputes, the therapist must make sure that the parent bringing the child to counselling is the parent with “final say” on medical disputes.  When these factors are “over-looked” it may provide prime material for the opposing attorney to make you look exclusionary, manipulative, disrespectful and uncooperative.  You must abide by your divorce document or you are at risk of being found in contempt.  The judge will likely not care that you did not understand what joint” legal” meant or that you were following someone else’s advice.

7.  “You have every right to demand to be involvement in the children’s therapy.” If it is the other parent that takes your children to therapy without your awareness, do not make the mistake of giving the therapist a hard time or demanding to know when the children’s appointment is scheduled.  Be polite and ask for your own appointment.  Do not show up for the children’s appointment and sit in the waiting room because this will make you look more interested in your “rights” rather than those of your children who will be extremely uncomfortable with you and the other parent sitting in the waiting room. Show that you are sensitive and request to bring the children to every other appointment if this is something you can manage.

8. “Be sure to tell the children’s therapist all about their mother!” If the children’s therapist is open to meeting with you alone, or immediately after the children’s session, do not make the mistake of trying to talk about the other parent. Your only interest should be about your children.

9.  “This is serious so report the abuse to the department of children services! A parent should never call protective services regarding the other parent.  As soon as the investigator finds out that the two of you are in a custody dispute, they will likely close the case and may even side against you.  Take your child to a mandated reporter such as their doctor or therapist.  Let the professional interview your child alone and report without your involvement.

10. “She is so nasty so just stop responding to any of her email.” Refusal to communicate will not be seen as positive, even if the other parent is unreasonable.  You are expected to communicate.  It will likely be used against you to prove that you cannot or will not co-parent.  Instead send brief weekly emails and answer only once a week unless it is urgent.  Ignore all the other email/text but do not stop communicating.  You need to demonstrate appropriate and respectful communication to show that you are the parent willing to cooperate.

11.  For heaven’s sake, don’t tell anyone you are on an antidepressant. If you need to be on mediation for any reason, including depression or anxiety, this does not have to be something to avoid. Receiving treatment and/or medication can be a very positive thing to do, if your attorney knows how to address it if it comes out in court.  Don’t be ashamed of taking care of yourself because this means you are trying to be at your best for your children.

Last but not least, never include your child in a joint session with you and the other parent when you are in conflict.  Do not include your child even if your child’s therapist naively thinks this will be a good idea. This is the number one mistake noted by inexperienced therapists.  Your child should be shielded from parental conflict rather than placed right in the middle of it!  Speak up and make it very clear that you will reschedule to meet together with the therapist and other parent but you will leave the child/ren home so they are not even aware of the meeting.

Your friends may mean well, but no matter who gives you the advice, you must think these decisions through carefully.  Remember that the professionals work for you.  Do not give your power away just because this is a stressful and confusing time. Carefully consider the professional’s recommendations and ask plenty of questions, but do not agree without thinking how the decision may impact your child or your case.  If something about the advice does not feel right or you can see how it will potentially give ammunition to the opposing side, then assert yourself and just say NO!


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