This article by Elephant Circle Director Jennifer Eyl was published this month on Legal Connection, a publication of the Colorado Bar Association.
Jennifer Eyl, Domestic Violence Awareness Month: Should Sole-Parent Decision-Making Really Be the Last Resort? Legal Connection, October 12, 2011. Available at: http://cbaclelegalconnection.com/2011/10/domestic-violence-awareness-month-should-sole-parent-decision-making-really-be-the-last-resort/
As an attorney, Child and Family Investigator, and parenting coordinator/decision-maker, I frequently find myself struggling with our parental decision-making paradigm. Unlike parenting time, decision-making can only go three ways: joint/shared decision-making, split decision-making, and sole decision-making. Yet, these three options are fraught with philosophical and practical implications under the best of circumstances. They are even more problematic where domestic violence exists in the relationship between the parents.
There is a presumption among family law practitioners that shared decision-making is the ideal. The predominant belief is that excluding a parent from major decisions in a child’s life is tantamount to excluding a parent from the child’s life entirely. When it come to cases regarding their children, one parent acts with the assumption that the other parent must be made an enemy in order to make themselves appear as a model parent. Demanding sole decision-making becomes the weapon of choice, intended to punish and hurt the other parent.
Shared decision-making presumes that what is best for children is that both parents participate equally in all major decisions. (I’ll leave a discussion of what a major decision actually is for another day, but for now let’s assume we are truly talking about major decisions regarding education, extra-curricular activities, health care, or religious upbringing.) The reality, however, is that for most parents who are no longer living together, this is a recipe for disaster. There are, of course, former couples that are able to maintain a civilized relationship and focus on the children, but they are not the couples that we all see in our offices on a daily basis. Frankly, if this worked so well, we wouldn’t have a need for the roles of parenting coordinator and decision-maker.
The average person leaves a relationship angry, bitter, and convinced that his or her former partner is the worst parent imaginable. If there is domestic violence in the relationship, shared decision-making becomes a means for the abuser to continue to exercise power and control over the victim, to manipulate the victim and the system, and to ultimately abuse the child. This is why C.R.S. § 14-10-124(1.5)(b)(V) specifically states, albeit weakly, that shared decision-making should not be awarded in cases of domestic violence.
Split decision-making, on the surface, looks like a fine alternative in those cases where couples simply cannot make joint decisions. Dividing the responsibility prevents the need for couples to cooperate. This could mean that one parent makes educational and health decisions while the other makes religious and extra-curricular decisions. Like shared decision-making, this works for some.
But, consider the myriad intersections between areas of decision-making: school and religion (especially for those children in parochial schools); extra-curricular activities and educational activities; healthcare and religion for some; and on and on. If someone wishes to constrain the other parent’s or the child’s choices, split decision-making is ripe for that sort of abuse. For example, the parent with extracurricular decision-making might decide the child is to participate in weekly karate classes, while the other parent is forced to take the child to those classes across town at an inconvenient time. It is a perfect storm for one parent to exercise power and control over the other and the child.
This leaves us with sole decision-making, which is frowned upon except in the most egregious circumstances. As I mentioned above, taking away a parent’s decision-making authority is viewed as second-class parent status. This is for people who have supervised visits and limited contact, right?
But should it be?
The Supreme Court has told us that parents have a constitutional right to the care for and have control of their children; so restricting that right must have a basis in substantial facts. Must this option really be reserved for only the worst of the worst? Isn’t it possible that it is in the children’s best interest far more often than we are willing to acknowledge?
Sole decision-making is supposed to be presumed in cases of domestic violence, for obvious reasons. But what often happens instead is that abusers argue they are not abusive and victims equivocate to avoid the conflict and abuse, only to end up with a decision-making order that perpetuates the dynamics of the relationship and further expands the children’s role as pawns.
I’ve spent a lot of time pondering these three options, and particularly their implications in cases of domestic violence. I am left wishing for better choices that will ensure the best interests of children. I’m left wondering if we, as attorneys, should reconsider our position on sole decision-making. I am also left pondering how attorneys can better assess for domestic violence and better support victims. During the month of October, Domestic Violence Awareness Month, I challenge you to give these questions some thought as well.
For those interested in exploring this topic further, there are a couple of excellent resources available:
The Civil Law Manual: Protection Orders and Family Law Cases (Rebecca Henry, Esq., ed., American Bar Association 3rd ed. 2007). Available at: http://apps.americanbar.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=3480008
Wallerstein, Lewis and Blakeslee, The Unexpected Legacy of Divorce: A 25 Year Landmark Study (Hyperion 2000).
Jennifer Eyl is an Attorney and Licensed Professional Counselor who has been working with victims of sexual and domestic violence since 1994. Jennifer currently serves as a court-appointed Child and Family Investigator and Parenting Coordinator/Decision-Maker. She is co-chair of the Colorado Bar Association’s Domestic Violence and Legal Issues Committee, a member of the Colorado Coalition Against Domestic Violence’s Public Policy Committee and Subcommittee on Domestic Violence and Domestic Relations, and is the chair of the Colorado Coalition Against Sexual Assault’s Public Policy Committee.