Exclusive Possession of Marital Residence Revisited

I have previously written about exclusive possession of a marital residence during a pending divorce action.  The applicable standard requires a showing of a marital strife and that the parties were unable to coexist in the same house.  I recently had an opportunity to litigate this issue in a situation where the parties’ conduct has not arisen to the level of marital strife, but the conflict was affecting the parties’ children.  Justice Richard A. Dollinger of the Monroe County Supreme Court reviewed and addressed this issue in L.M.L.v. H.T.N. a/k/a H.T.N., 57 Misc.3d 1207(A) (Sup. Ct. Monroe County 2017).

Having reviewed the history of the marital strife standard, Justice Dollinger wrote that lower courts have generally required more evidence of “strife” than the “petty harassments such as the hostility and contempt admittedly demonstrated herein that are routinely part and parcel of an action for divorce.”  However, he also noted that even minimal levels of domestic discord impact children living in a besieged household.  Given those circumstances, he wrote that:

The harm of a hostile home environment – populated with foul words, disparaging comments, loud demeaning voices, frequent arguments and verbal fights – and the fear for safety of the mother and the children rise, in this court’s view, to the level of domestic violence that [*10]mandates court intervention.Second, this court concedes that simply separating the parents may not end the torrent of verbal abuse directed at the other parent: even in new separate residences, a parent can unleashed verbal abuse and make demeaning comments about the other parent. The children will be exposed to that language, perhaps even harsher than what would be uttered in the company of both parents. But, the children will be spared the retort, the rising voices, the angry face-to-face confrontations that ensue when a parent begins a verbal argument. This difference — between the comments of separated parents living in separate residences and confrontations of parents living in the same residence — may be seem of minor importance to the judiciary, but it would seem to be easily classified as in the “better interests” of the children.

Justice Dollinger summarized the issues before the court as “[t]he mere suggestion that “exclusive use” should hinge, in any fashion, on the “voluntary establishment of an alternative residence” also suggests that preventing domestic violence may depend, in part, on the untenable notion that the convenience of one party’s ability to secure short-term housing away from the home is somehow more important than the emotional security of the children.”  The above holding represents a significant departure from the existing standard.  I agree with the decision and have always thought that the marital strife standard was unduly restrictive.  I will be interested to see if this decision will be followed by other court in pending divorce cases.


Expanding Definition of What It Means to Be a Parent

The New York State Court of Appeals ruled last week in Brooke S.B. v Elizabeth A.C.C., 2016 N.Y. Slip. Op. 05903, that a loving caretaker who is not related to, or the adoptive guardian of, a child could still be permitted to ask for custody and visitation rights.

The ruling came from a litigation between a couple, known in family court papers only as Brooke S.B. and Elizabeth A. C.C. In 2008, Elizabeth became pregnant with the couple’s child through artificial insemination. Though Brooke had no legal or biological ties to the child, a boy, she maintained a close relationship with him for years, cutting his umbilical cord at birth, giving him her last name and raising him jointly with Elizabeth. In 2013, after their relationship ended, Elizabeth tried to cut off Brooke’s contact with the boy. Brooke sued for custody and visitation privileges, but was turned down by a lower court, which found that legal precedent pursuant to Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), did not define a non-adoptive, non-biological caretaker as a parent.

In its ruling, the Court of Appeals overturned Alison D., stating that “the definition of ‘parent’ established by this court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships.” It further held that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody.”

While Brooke S.B. seems to be applicable primarily to same sex couples, it is easy to see that the same type of argument may be applicable to heterosexual couples in situations where one partner is artificially inseminated.  The Court of Appeals declined to state what the proper test should be in cases where no preconception agreement can be shown to have existed between nonbiological couple. As far as the proof of the parties’ intent, the courts are likely to look at the parties’ participation such activities as birthing classes, partners’ inclusion on birth notices and other traditional indications of the existence of a pre-conception agreement between a couple.

Final Custody Determination Requires a Plenary Hearing

A mother who lost custody of her children after she broke windows at their father’s house and set fire to his clothes in the driveway should have received an evidentiary hearing, the Court of Appeals has ruled in S.L. v. J.R., 2016 N.Y. Slip. Op. 04442 (2016).  According to the filings, the mother, identified as S.L., and the father, identified as J.R., were married in 1997 and had two kids together.

In September 2012, after 15 years of marriage, S.L. filed for divorce from J.R., and sought full custody of the children. Also that month, she texted J.R.—who had moved out of the family’s house several months prior—that she would burn down the house and set his clothes on fire.

J.R. arrived at the house to find his clothes burnt in the driveway and windows at the house smashed out.  He filed for temporary sole custody of the children, alleging that he feared for their safety because of incidents involving harassment by S.L. and that she also had extramarital affairs and abused alcohol and drugs.

S.L. admitted to setting fire to J.R.’s wardrobe and her involvement in several other incidents, including a past charge of aggravated assault. In October 2012, the trial ruled that there were “enough red flags” to justify granting temporary sole custody of the children to J.R. In April 2013, S.L.’s visitation was suspended after a therapist determined that it would not be in the best interest of the children to allow visitation to continue until she entered anger management therapy.

A few months later, the trial court granted sole custody to J.R. without having a hearing, writing that a hearing was not necessary because the “allegations are not controverted” and that S.L. was being charged in three pending cases in the Integrated Domestic Violence part. In two of the cases, the judge said, S.L. was charged with breaking orders of protection prohibiting her from contacting J.R. or the children.

S.L. appealed trial court’s ruling, but in 2015, the Appellate Division, Second Department affirmed the lower court in S.L. v. J.R., 126 A.D.3d 682 (2nd Dept. 2015), writing that, while custody decisions are generally only made following a comprehensive evidentiary hearing, no hearing is necessary when the court “possesses adequate relevant information to enable it to make an informed and provident decision as to the child’s best interest,” citing its 2004 ruling in Matter of Hom v. Zullo, 6 A.D3.d 536 (2nd Dept. 2004).

But, on June 9, the Court of Appeals unanimously reversed the Second Department’s decision. The Court wrote that while there should be no “one size fits all” rule mandating a hearing in every custody case, custody decisions should generally be made after a full and plenary hearing. In the case of S.L., there were facts relevant to the best interest analysis that were still in dispute, and the trial court appeared to base its decision on hearsay and on the statements of a forensic investigation whose credibility was not questioned by either party.

While the mother was successful in reversing the trial court’s determination, ultimately, I do not believe that it will make a difference when the case is tried. Given the conduct at issue, it is unlikely that the parties will be able to have a joint custodial arrangement.

Parent Who Is Prevented From Seeing Child By Other Spouse Is Not Obligated To Pay Child Support

I have previously written about situations where a child becomes constructively emancipated as a result of the child’s refusal to have contact with the parent.  What happens in situations where a parent is prevented from seeing the child by the other parent? In Coull v. Rottman, 131 A.D.3d 964 (2nd Dept. 2015) the Appellate Division, Second Department suspended father’s obligation to make child support payments.

The father last visited his son in February 2010. For the next several months, he said he would go to the exchange location on visitation days, but often neither the mother nor his son would be there. In one instance, both the mother and the child appeared, but the mother said the boy would not leave the car.

The court also found that the mother assumed an inappropriately hostile stance toward the father and witnesses who testified in his favor.  She further stated many times that she would never allow the father to see his child and would do “whatever it takes” to keep the boy away from him.

Given the circumstances, the court concluded that the father’s obligation to pay child support should be suspended.  While parents have a duty to continually support their children until they are 21 years old, where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended.

Further, the relationship between the father and the child had deteriorated and while the boy had participated in therapy for several months to foster a relationship with his father, he remained “vehemently opposed” to any type of visitation with the father.  Since the child was 13 at the time of the hearing, and the judge had placed great weight on the child’s wishes, since he was mature enough to express them.

A similar result was reached by the court in Argueta v. Baker, 2016 N.Y. Slip. Op. 01838, where the Appellate Division held that the father had demonstrated that the mother actively interfered with and deliberately frustrated his visitation with the child by failing to provide him with the child’s Florida address, preventing him from seeing the child when he was in Florida, and failing to notify him when the child was in New York. Therefore, the father was entitled to suspension of his child support obligations.

Both parental alienation and parental interference cases turn on specific proof of the child’s and parents’ actions. They may also require testimony of the child. If the parental relationship with the child is already bad, forcing the child to testify is not likely to improve it.

Validity and Finality of Custody Stipulations

Many custody cases are resolved by agreement. When this happens, the parties often place their agreement on the record, either as an oral stipulation recorded by court stenographer or reduce it to a written agreement. Sometimes, immediately after or some time later on, a party to the stipulation may change his mind and ask that the court vacate the stipulation.

In Jon v. Jon, 2015 N.Y. Slip. Op. 51118(U) (Sup. Ct. Nassau Co. 2015), the plaintiff, immediately after entering into a written settlement stipulation, regretted her decision and changed her mind and attempted to have the stipulation vacated. Plaintiff argued that since she was not represented by counsel, that her agreement was not knowing and voluntary, and it came as a result of overreaching by defendant or undue pressure placed on her.

The court heard testimony of the parties determined that although wife was not represented by counsel, the absence of independent legal representation, without more, did not establish overreaching or require nullification of an agreement. She had the opportunity in just a few hours to negotiate with defendant’s counsel in the presence and with the assistance of a court mediator. She decided to pass on that opportunity.

Furthermore, plaintiff was not significantly disadvantaged by the lack of counsel because she could have obtained equal parenting time with her children if she had only agreed to it. She declined because she did not want the children shuttling between their parents. If defendant was not going to agree to let plaintiff have custody of the children—and he wasn’t—she decided to do what in her opinion was the next best thing: let the children stay with defendant. And she did not identify a single thing she wanted in the stipulation that was not included. Given that the stipulation was drafted and signed in “neutral territory”—the courthouse within earshot of the judge—and since the attorney for the children was present throughout, the absence of an attorney did not render the stipulation unfairly made.

The court concluded that neither the terms of the stipulation nor the circumstances surrounding its execution evidence overreaching on the part of defendant. As a result, the court held that it may “not intrude so as to redesign the bargain arrived at by the parties on the ground that judicial wisdom in retrospect would view one or more of the specific provisions as improvident” or imprudent. Christian v. Christian, 42 N.Y.2d 63, 72 (1977).

The key finding that the court made was the following:

This court does believe plaintiff in one important respect: she freely and fairly made a decision and executed an agreement that she very quickly regretted and desired to change. But there is no statute or case that affords a contracting party the opportunity to change their mind, regardless of how quickly they desire to do so, in the circumstances presented here. This court sees the wisdom in affording to an unrepresented party the opportunity within a short window the absolute right to rescind a custody agreement. That would be plaintiff’s only salvation when faithfully applying the current statutory and common law to the facts in this matter.

Stipulations are meant to bring resolution and finality to the parties. They should not be taken lightly and should be thoroughly understood before being finalized.

Need to Preserve Relationship with Parent Does Not Take Precedence Over Economic Factors in Relocation Cases

In Butler v Hess, 85 A.D.3d 1689 (4th Dept. 2011), petitioner father filed a petition seeking to modify the parties’ existing joint custodial arrangement. Specifically, respondent mother had primary physical residence and the father had visitation. The father sought to prevent the mother from relocating with the child to Pennsylvania and sought sole custody of the child.

The mother filed a cross petition seeking permission for the child to relocate with her to Pennsylvania. The trial court denied mother’s application and prohibited her from relocating to Pennsylvania. The Appellate Division agreed with mother’s contentions that Family Court erred in denying her cross petition.

The Appellate Division found that the record established that, pursuant to the existing arrangement, the father had regularly scheduled visitation with the child. The mother remarried in December 2003, when the child was six years old, and the mother and the child began living with the mother’s husband at that time. In December 2006, the mother lost her job as a result of budget cutbacks and, in July 2007, the mother’s husband lost his job after his position was eliminated. The mother’s husband accepted a job in Pennsylvania in October 2007, which was the basis for the mother’s cross petition seeking permission to relocate with the child to Pennsylvania to join her husband. The Court concluded that the mother established by the requisite preponderance of the evidence that the proposed relocation would serve the child’s best interests”. Tropea v. Tropea, 87 N.Y.2d 727, 741 (1996). The Court of Appeals in Tropea held that economic necessity may present a particularly persuasive ground for permitting the proposed move. According to the Appellate Division, the record reflected that the trial court did not adequately, if at all, consider the financial considerations underlying the requested relocation. The mother requested permission to relocate because she and her husband lost their jobs within a relatively short period of time. The mother’s husband testified that both his health insurance, which also covered the mother and the child, and his severance pay ran out in August 2007. After the mother’s husband lost his job, he and the mother depleted their savings and their house was placed into foreclosure. The mother and her husband testified that they unsuccessfully attempted to locate jobs in Western New York and that the mother’s husband accepted the job in Pennsylvania out of financial necessity.

The trial court based its determination primarily on its conclusion that the relocation would “qualitatively affect” the child’s relationship with the father. The Appellate Division held that this was erroneous because the need to give appropriate weight to the feasibility of preserving the relationship between the parent without primary physical custody and [the child through suitable visitation arrangements does not take precedence over the need to give appropriate weight to the economic necessity for the relocation. Further, the record established that the proposed relocation would not have a substantial impact on the visitation schedule. The mother and the husband testified that they would transport the child to and from Pennsylvania every other weekend, and they offered to pay for a hotel for the father in Pennsylvania on his off-weekends so that he could exercise additional access with the child. The mother further testified that the holiday access schedule would remain the same because she and her husband would be returning to Western New York at those times to visit with their respective families, who resided there. In addition, the mother’s husband purchased video conferencing equipment for his household and the father’s household to enable the father and the child to communicate during the week and on the father’s off-weekends.

Thus, the mother established “the feasibility of preserving the relationship between the [father] and child through suitable visitation arrangements” Tropea, 87 N.Y.2d at 741. Therefore, the Appellate Division reversed the lower court and permitted relocation.

While the appellate court recognized the mother’s need to relocate, it is unfortunate that it took a situation where the mother and her husband both lost their job and exhausted all of their financial resources and their house went into foreclosure. In my opinion, it would be appropriate for the court to consider the parties’ economic circumstances well before they become dire. It today’s economy, it is likely that we will see these issues addressed by the courts time and time again.

Family Court Referees and Their Authority to Hear Cases

Most of the cases in Family Court are decided by Family Court Judges who preside over most Family Court hearings. The Family Court Judges, here in Monroe County and elsewhere in New York State, typically hear child custody, visitation, adoption, juvenile delinquency and other cases. However, here in Monroe County, Court Attorney Referees hear custody, visitation, and order of protection cases. Family Court Attorney Referees are appointed pursuant to the Family Court Act and CPLR.

One of the first things that takes place in a case before a Family Court Attorney Referee is that the parties and their attorneys will be asked if they will agree to the Referee’s jurisdiction to hear and determine the matter. If the parties agree, the Referee will asked them to sign a stipulation confirming their consent. If the parties do not consent, the case is usually removed and heard by the Family Court Judge.

It is critical for the Referee to make sure that the parties consent to his jurisdiction to hear the case. A recent case, Gale v. Gale, 2011 NY Slip Op 06490 (2nd Dept. 2011), demonstrates what happens if the referee fails to obtain that consent. In Gale, the mother filed a petition seeking to modify provisions of the parties’ judgment of divorce. The case was assigned to a Family Court Attorney Referee who heard the case and ultimately modified custody provisions of the judgment of divorce, granting the petitioner sole custody of the children. The father appealed, arguing that the referee lacked jurisdiction to hear the case since the referee had failed to have the parties sign the stipulation or otherwise establish that the parties consented to her jurisidiction. The Appellate Division agreed with the father and reversed.  Specifically, the Appellate Division stated that

Upon review of the record, we find that the parties did not stipulate to a reference in the manner prescribed by CPLR 2104. In any event, there is no indication that there was an order of reference designating the referee who heard and determined the petitions at issue here. Contrary to the mother’s contention, the father did not implicitly consent to the reference merely by participating in the proceeding without expressing his desire to have the matter tried before a judge. Furthermore, a stipulation consenting to a reference to a specified referee, executed by the parties in connection with the father’s previous petition to modify the visitation schedule, expired upon completion of that matter and did not remain in effect for this matter.

Accordingly, the referee had no jurisdiction to consider the father’s petitions related to custody and visitation and the mother’s petition to modify custody, and the referee’s order determining those petitions must be reversed. (citations omitted)

While the parties cannot choose the person who will decide their case, they do not have to agree to the Family Court Attorney Referee to hear and decide it. Sometimes there are reasons to have the case heard by a Family Court Judge, and the parties should consider not agreeing to the referee’s jurisdiction under appropriate circumstances.

Interference with Visitation May Result in Change in Custody

In Keefe v. Adams, 85 A.D.3d 1225 (3d Dept. 2011), the Appellate Division, Third Department, had to address issues related to interference with visitation which were raised by the father who brought a petition to modify existing  custodial and residential arrangement.  The parties had a custody and residential arrangement on the basis of May 2007 consent order which provided for joint custody, with mother having primary physical custody and father having visitation. In August 2009, father sought a modification of custody, alleging that mother moved out of county without his consent and is consistently late in exchanging child at drop-off location.

The court held that a significant change in circumstances occurred which reflected real need to modify parties’ stipulated custody order. The court found that mother admitted to moving with child to different county, 42 miles away from father, without informing him, and parties’ relationship deteriorated to point of inability to discuss important matters concerning their child. Further, mother also consistently arrived between 15 minutes to 2 hours late in dropping child off or picking child up. Mother interfered with father’s visitation rights by arriving late for dropping off and picking up child. The court also held that evidence showed as well that mother promoted her boyfriend as substitute for child’s father and that her relocation both required the child to change schools and hindered the father’s involvement in the child’s life. The father, on the other hand, manifests a markedly greater ability to control his behavior in front of the child, as well as a willingness to foster the relationship between the mother and child. The court noted that while custody with the father will unfortunately separate the child from his half brother, with whom he has a close relationship, the father testified that the half brother would be welcome in his home.

In view of the above circumstances, the court held that an award of sole custody to father with visitation to mother in child’s best interests. The court’s decision to modify existing custodial arrangement is not a common one. In most cases, courts are likely to fashion a less drastic remedy.

Can a Parent Travel with Young Child Abroad Over Custodial Parent’s Objections?

One issue that may come up in custody cases is whether a nonresidential parent has ability to take a child abroad during his or her period of visitation. It is not uncommon for a residential parent to object to such request, and sometimes parties wind up in court seeking a determination whether such travel can be permitted.

In a recent case, Russo v. Carmel, 2011 N.Y. Slip. Op. 05889 (4th Dept. 2011), the Appellate Division, Fourth Department, permitted the father to travel to Italy with his two year old child for a period of not more than 15 days on 60 days’ notice to the mother. The mother opposed the request, arguing that the child was never away from the mother for longer than 48 hours, that the father’s visitation was limited to 48 hour periods and that the child would be in an unfamiliar environment with relatives who were unknown to the child.  The court held that the record established that, although the father’s visitation with the child was limited, the father has a close bond with her and, during visitation, he prepared her meals, bathed her, administered medication as necessary and took her on outings. Further, the mother did not express any concerns that the father would abscond with the child. The court concluded that it is in the best interests of the child to travel with the father to Italy to meet her extended family.

While in most cases the court is unlikely to allow a parent to travel abroad with a very young child, in this case, the father was able to present convincing evidence that the trip was intended to introduce the child to her relatives abroad. Further, the mother was unable to present any evidence of the father’s inability to take care of the child and was not afraid that the father would refuse to come back to the United States. In view of these facts, the trial court’s decision and the Appellate Division’s decision were clearly correct.  While the residential parent may have a significant measure of control over non-residential parent’s ability to travel with the child, the residential parent should not raise objections unless there is specific evidence that such travel would be inappropriate and not in the best interests of the child.

A Brief Summary of Collaborative Law – A Way Toward Amicable Divorce

I have previously written about Collaborative Family Law as an alternative to traditional litigation methods of resolving family disputes. Here is some additional information that describes the process and the goals of Collaborative Law.

Collaborative Law is a method for conflict resolution in which the participants focus their efforts on reaching a mutually agreeable resolution. Attorneys and other professionals are retained during the collaborative process for the sole purpose of assisting their clients in reaching this goal.

The client and their lawyers agree to work respectfully and in good faith to gather all information needed to reach an agreement, including developing the interests of each client. The participants do not engage in traditional discovery process since it tends to be expensive and lengthy. The clients and their collaborative attorneys agree from the beginning that they will produce and exchange all necessary information and documents voluntarily and in a timely fashion. Non-legal professionals are usually retained as joint neutrals and work together with the participants to define the scope of their assignment and to gather information.

The process typically includes various meetings at which the clients and their attorneys, as well as other professionals meet together to discuss the issues, make any necessary interim arrangements, and to plan for information gathering (not every professional will be present at every conference.) These conferences continue to be utilized to exchange and clarify information and to brainstorm possible options for resolution. The clients and their lawyers focus on educating everyone regarding the underlying information, each client’s interests and possible solutions. Out of this process, a settlement which meets the approval of all clients can be fashioned. Negotiations are based upon efforts to find options that will serve the interests of all clients and other affected persons, and if applicable, create the possibility for a positive continuing relationship.

The clients and their collaborative attorneys agree that they will not go to court during the time they are working towards settlement. If the clients are unable to reach an agreement, the collaborative attorneys and other professionals withdraw and litigation attorneys take the dispute to court.

Collaborative family law started with one attorney in Minnesota in 1990 and is now practiced across the United States, Canada, and internationally. Collaborative family law was started in Rochester, New York, and Monroe County, a few years ago as an attorney centered method in family law. However, more recently, other affiliated professionals including financial analysts, psychologists, counselors and coaches also became involved.  Here in Rochester, collaborative professionals belong to Collaborative Law Association of the Rochester Area, Inc. (“CLARA”) which includes among its members attorneys, child specialists, coaches, mediators and financial professionals.

Here are some questions and answers about Collaborative Law.

1. What is Collaborative Law?

Collaborative Law is a way to resolve disputes between people in a fair, open and respectful manner. In Collaborative Law, the goal is to reach a mutually acceptable settlement of a dispute that both parties will be able to abide by. The parties retain Collaborative professionals such as attorneys, accountants, financial planners, and therapists, who agree to work in good faith to gather and share all information needed to reach an agreement. The parties and their Collaborative attorneys agree in advance that they will not go to court to ask a judge to resolve their dispute for them during the collaborative process. If they are unable to reach an agreement, and one of the parties decides to go to court, the Collaborative professionals withdraw from the case. Another set of attorneys is then retained by the parties to represent them in court.

2. How does Collaborative Law differ from other methods of dispute resolution?

There are many ways to resolve disputes. Litigation is the traditional legal approach. In litigation, lawyers work hard to convince a judge (or jury) that the lawyer’s client’s version of facts is correct. Often, this includes challenging the other party’s version of the facts. Trial is often compared to a battle, in which the best side wins. However, all lawyers understand that the “best side” doesn’t always win and that in many disputes, the party who “wins” at trial still loses in other ways. In some circumstances, litigation is the only appropriate option. For example, if a party consistently hides information or is abusive, the formal procedures used in litigation may be necessary. If a party is unwilling to negotiate in good faith, a third party decision may be needed. Litigation usually costs more than other forms of dispute resolution and the outcome is typically less satisfactory.

In mediation, a neutral professional assists the parties in settling the dispute. Generally, the parties agree that all information will be shared and that they are seeking a “win-win” solution. The mediator does not represent either party and the parties do not go to court. In some forms of mediation, attorneys serve only in a consulting or reviewing capacity. In other situations, attorneys participate in the mediation. Mediation can work well for parties who have the ability to communicate their needs directly to the other person and who have similar understanding of the financial and other information being presented.

Collaborative Law combines the positive qualities of litigation and mediation. As in litigation, each party has an independent lawyer who will give her or him quality legal advice and will assist in putting forward his or her interests. Similarly to mediation, the parties and their Collaborative attorneys commit to both an open information gathering and sharing process and to resolve their differences without going to court. In addition, the parties can mutually agree to engage other professionals such as child specialists, financial specialists, coaches, vocational counselors or other neutral consultants to provide them with specialized assistance. The parties acknowledge that the best result for each of them will occur when they reach the best result for all of them.

3. How is information gathered in Collaborative Practice?

The parties do not engage in expensive legal procedures to obtain information. The parties and their Collaborative attorneys agree from the beginning that they will share all necessary information and documents voluntarily and in a timely fashion. Hiding documents or unnecessary delays are not permitted. If a party is not acting in good faith and “hides the ball”, it is the duty of the attorney to work with the client to change his or her behavior and to withdraw if the behavior continues. If a party continues to refuse to act in good faith, the Collaborative process can be terminated.

The parties decide what type of additional assistance is needed in the information gathering process and jointly engage consultants. For example, the parties can jointly hire a financial specialist to assist them in gathering and organizing financial information and to create projections for future financial possibilities. Or, they can jointly engage an appraiser to provide them with an opinion regarding the value of a particular asset.

4. How are questions relating to children addressed in Collaborative Practice?

One of the most important aspects of Collaborative Practice in a divorce dispute is the opportunity to resolve the divorce in a manner which creates a healthy co-parenting relationship so that the children’s interests and family relationships are protected. Sometimes, the parties have developed a working co-parenting relationship prior to entering the Collaborative Process. However, in many cases, the parents need assistance in transitioning from parenting in one household to parenting in two households. Divorce coaches and child specialists can assist parents in developing effective communication and in creating a parenting agreement. The Collaborative attorneys assist as needed in working out an agreement and preparing the necessary final legal documents.

5. How do the parties and professionals work together?

After initial meetings with their own Collaborative attorneys, the typical process is to start the case with a 4-way conference — the parties and Collaborative attorneys, and sometimes coaches, meet together to discuss the issues, make any necessary interim arrangements regarding children or finances, and to plan for information gathering. In addition, the parties can work individually and jointly with coaches to develop effective communication techniques and to manage the intense emotions that often accompany conflict. Additional consultants such as financial specialists, child specialists, or appraisers can also be hired to assist in other aspects of information gathering and processing. The multi-person conferences continue to be the normal means of exchanging and clarifying information and to brainstorm possible options for resolution. The Collaborative professionals work together and with their clients to plan each meeting. The parties and Collaborative attorneys focus on educating everyone regarding the underlying information, each party’s interests and possible solutions. Out of this process, a settlement which meets the approval of the parties can be fashioned.

6. Does it work to have everyone together in the same room in the middle of a conflict?

The job of the Collaborative professionals is to establish positive communication. People in a legal dispute often feel vulnerable and emotional and can be less aware of how their patterns of communication can cause problems. The Collaborative professionals help each client to present his or her interests and needs in a positive manner that will be heard by the other participants. Meeting together can help everyone to be “on the same page”, which ultimately facilitates reaching an agreement. The focus of the meetings is to find a solution, not attack each other.

7. Must an agreement be reached in Collaborative Practice?

No. All parties must voluntarily agree to the solution. No party is forced to accept a solution that does not meet his or her interests and needs. The parties understand that the goal is to fashion a solution that comes as close as possible to a “win-win” agreement, while recognizing that they won’t receive everything on their “wish list.”

8. If the parties reach an agreement through Collaborative Practice, what happens next?

The Collaborative attorneys will draft the necessary legal documents to memorialize the parties’ agreement. This paperwork is then submitted to the court for approval. A court hearing is not required.

9. What happens if a settlement cannot be reached?

If the parties cannot reach an agreement, the parties can explore other options for settlement such as mediation, arbitration, private judging and neutral case evaluation, some of which may allow them to stay within the collaborative framework. If court hearings are required, the Collaborative attorneys withdraw and each party retains a new attorney for trial.

10. Why is it necessary for the Collaborative attorney to withdraw if an agreement is not reached?

Attorneys are typically trained to approach cases with the underlying assumption that a court will make the ultimate decision. Cases are analyzed with this foundation and are settled with the backdrop being “what will happen if we go to court.” “Going to court” can often become a threat that makes communications difficult and pushes the parties apart rather than moving them toward a settlement. Since settlement has not been the focus from the very beginning, cases often do not settle until the parties are “at the courthouse steps,” after incurring substantial attorney’s fees and depleting their emotional resources.

The agreement by both the parties and Collaborative attorneys that their Collaborative attorneys will not go to court focuses everyone on creative means of settling the case in a way that is acceptable to all parties. The focus of the process stays on reaching an agreement rather than preparing a case for trial since the Collaborative attorneys will not be representing the parties in court. The tendency to “drift” to court as the default decision-making method is reduced.

11. Who should consider the Collaborative approach for their dispute?

Collaborative Practice works best for parties who wish to settle without going to court and are willing to commit to a good faith effort to do so. In Collaborative Practice, you maintain control over your decision making rather than letting a judge decide. You can also control the amount of information that becomes a part of the public record (normally, the entire divorce file is open to the public, including any allegations made by either party in obtaining temporary orders or at trial.)

People in conflict often have continuing relationships with each other, as co-parents, business colleagues, or through their circle of friends and relatives. Collaborative Practice will increase the possibility of maintaining a civil or even cordial relationship with the other person after the resolution of your conflict.

You should also consider Collaborative Practice if you wish to dramatically reduce your legal fees. A dispute that goes through the entire legal process including a trial can cost tens of thousands of dollars for each party. The formal legal procedures take much more attorney time (and your money) than the informal process used in Collaborative Law. The focus on settlement moves the case to resolution faster than the typical court-directed case, which also reduces your fees.

12. What do I do if I want to use Collaborative Practice for my dispute?

You will need to find a Collaborative attorney whom you can trust to provide you with both quality legal advice and the skills needed to work towards a settlement. You can discuss with the Collaborative attorney the ways of approaching the other parties about the collaborative process, which can include you discussing the idea with him or her, your attorney contacting the other party, or your attorney discussing it with the other party’s attorney(s), if one has been retained. In the alternative, you can contact coaches or other professionals who may be involved in the collaborative approach and discuss the process with them.