Protecting Vulnerable Children During the Legal Process
by Sonya Fischer, OTLA Guardian
The fact is, as lawyers, we are in the role of advocating positions and perspectives in an adversarial construct that actually is harmful to children.
I think of Jacob who lived in Israel with his father. After a visit home to Oregon to see his mother, she refused to send him back. Jacob was 15 years old. His whole life and future was in Israel. As his father’s lawyer, we got a writ of assistance and police officers removed Jacob from his mother’s apartment while she visibly demonstrated her despair. Jacob met his father at the airport and returned to Israel with him.
I think of four-year-old Jesus who watched his father kidnap his mother, tie her up, put in the back of a van, rape her and drive toward Mexico where he later told me she expected his father to kill her. Fortunately, there was a restraining order in place and Jesus’s mother was able to communicate to the gas station attendant that she was kidnapped. Law enforcement was called, his father was arrested and later sentenced to 30 years in prison.
I think of Julie, 14, who, having spent her time during the COVID-19 pandemic isolated and disconnected from friends, went back into school, discovered fentanyl and can’t seem to stop. Her parents sent her to a therapeutic boarding school outside of Oregon. Now her father doesn’t want to pay and her mother is sure she will die if she comes home as they will not be able to keep her from the drugs. The family is broken and Julie may not survive without continued intense intervention.
I think of Timmy, whose parents’ relationship fell apart due to a polyamorous relationship that brought jealousy and resentment. Timmy’s father never recovered and has depended on Timmy for his emotional support. Now Timmy is 15 years old and struggles to gain his own independence. Carrying all of his dad’s emotional needs has become a burden for him. While his father tries to gain increased control through the legal system, having an attorney appointed for Timmy did eventually result in his voice being heard and he was finally able to make his own choices.
Josh, a seven year old who lights up a room with his exuberant smile and incessant chatter, had two parents who were very invested in him. His mother took every recommendation from therapists to help him overcome challenges related to autism and his father just wanted to play, have fun and spend more time with him. The biggest challenge was his mother’s over communication with his father, especially when Josh was with him, interfering with his father’s ability to spend quality time with their son.
One-year-old Sally’s mother would drink until blacking out. Sally’s father loved her mother so much he looked the other way until he couldn’t any longer. One day, her mother took Sally to visit friends where she drank excessively, got in the car and drove home. They made it home in time for her mother to pass out in the car with Sally in her car seat. When the neighbors found them the next day, Sally crying in her car seat and her mother unable to respond, they called 911. Her father went to court and got an emergency custody order due to immediate danger, taking custody of Sally.
Children get caught between parents who don’t want to be with one another, fighting for legal positioning, promoting and pushing their position to solidify their place in their children’s lives. Even in the best of cases where parents are really focused on what is best for their kids, they can’t help but hold onto the attachment they have with their children and protect it. Is positioning best for kids? Usually never.
The latest research finds children need access and relationships with both of their parents. I will say that again — children need access to meaningful and healthy relationships with both of their parents. How, as lawyers, do we facilitate that? It’s super hard. I know I’m not alone when I say that, when I work with my clients, I talk to them about their kids, reminding them the children belong to both of the parents,
working to get them to focus and focus and focus on their precious little children who don’t have the ability to make decisions for their lives.
We look at what resources we have available to us in this adversarial construct.
Domestic violence family protection orders.
If violence occurred within the last 180 days and a client is at
risk, getting a restraining order may be appropriate. The tough call for lawyers is a restraining order will not prevent someone intent on causing harm to stop. However, it does potentially provide an important level of protection. With Jesus, whose father kidnapped his mother, a Oregon Family Abuse Prevention Act (FAPA) order was in place at the time. Also, in place was support from a victim advocate and safety planning from a domestic violence resource center.
Parent coaches.
If we have a parent who is just not focusing on the child, getting that parent a coach can do wonders with helping them to reframe how they interact with the child. In Jacob’s case, a parent coach for his mother could have worked wonders. Her disdain for his father led her to make decisions like trying to keep Jacob from going back to Israel. This not only hurt her son immensely, but also damaged their relationship moving forward. That case particularly haunted me because the attorney representing the mother was very entrenched and would not facilitate effective support for her. I have had other cases where my client received coaching which has allowed them to process their negativity and move past it as the family heals. It is amazing to see the resilience of parents who seek out and receive support.
Therapy.
Pushing the parents to get the child into therapy and to get into therapy themselves, can be immensely helpful. Children often need a safe place to share what they’re going through. For Julie, not only did she need intense therapy and support, but the rest of her family needed support too. A children’s therapist can be very helpful in guiding the parents to see how their actions impact their children. Where Julie is struggling with drug addiction and living in a therapeutic setting, her sister Mary benefited from having a safe place to share. Mary sharing how the conflict between her parents was the root cause of her anxiety moved the parents to focus more on her needs while Julie was working on recovery out of state.
Custody evaluation.
Sometimes a custody evaluation by an expert who will come in and analyze all the aspects of the family in order to determine what is in the children’s best interest is needed so arrangements for custody decision-making and parenting time can be determined. With Josh, who has autism, the evaluation dug into how his mother’s overzealous interventions exacerbated Josh’s anxiety and his challenging behaviors. It also revealed how his mother’s interference with his father’s parenting time through her constant text, calls and emails was damaging. Josh needed an unfettered place to play and engage with his father. While the Judge in that case did not change custody to his father, he put his mother on notice to get the support she needed to stop interfering with his father’s relationship with Josh or he would change custody. Fortunately, the recommendations in that case were excellent and his mother followed them, ending the litigation for that family.
Child’s attorney.
Sometimes giving the child an attorney to help them have a voice when the situation is so adversarial is essential. In Timmy’s case, where his father was overly emotionally enmeshed with him, the child’s attorney effectively promoted a parenting plan that empowering Timmy to decide where he would spend time between the two parent households. When Timmy had this freedom, he began spending most of his time with his father. Soon, Timmy became overwhelmed and, with the help of his attorney, he was able to simply make a different decision. While Timmy’s attorney did not help fix the entrenched emotional problems in the family, the attorney gave Timmy the tools he needed to assert himself effectively.
Parent coordination.
In the most difficult of situations, having a parent coordinator work with both parents to resolve conflicts is essential to best protect the children from the conflict. For Sally, bonding with her mother was interrupted due to the limited parenting time set by the emergency order. This motivated her mother to go into treatment and get help. Coming out of treatment, a parenting plan was put in place to assure Sally’s safety and promote her mother’s recovery. But her mother failed repeatedly, which often happens with substance use disorder. Fortunately, the parent coordinator appointed provided strong, tough support to her mother and she eventually found recovery. I remember her mother telling me how much she hated her parent coordinator. She didn’t want the accountability and the oversight. At the same time, she wanted to parent her daughter more. Eventually, things worked out and Sally was able to have meaningful relationships with both of her parents.
In the end, do these tools create happy children and families? Sometimes but not always. The conflict creates the harm. Then how do we create tools to protect vulnerable children? First, we lean deeply into how we can work with our clients from the outset, helping them see their role in fostering healthy children. Our roles as lawyers are to zealously represent our clients. Sometimes our clients can’t see what they really need and how their disdain, hurt and anger can harm themselves, their kids and their future ability to parent. Knowing what tools and strategies are available to help is really important.
Better yet, we must work to create a society that values children and focuses on what children need. We need a society that gives children more support beyond the family they live in. We need to make sure our schools are strong, there’s adequate children’s mental health services and our elected leaders understand the cost and consequence of not investing in children. That investment for children needs to be present at the earliest of ages, starting from before they are born and especially through the age of eight years old, when they are being formed with all their synapses and brain connections. Trauma destroys generations. We’ve seen with COVID-19 pandemic how children who have been isolated struggle, and how the schools are overwhelmed with behavioral challenges and children who are seriously lost.
I know that complete answers wrapped up in unicorns and rainbows do not exist. When it comes to our kids, there are no unicorns and rainbows. The magic and the beauty has to be created around them so their growth and maturity can happen in a place of safety and security.
I challenge you to look at what it is in your life and practice, and what drives you to continue in this work. Then take it one step further to look at the broader context and ask, “What can I do to create a more peaceful world?” Only by looking at the world through this lens, can we, as a community, create the tools necessary to truly protect vulnerable children.
SONYA FISCHER practices family law and is the owner of Fischer Family Law PC. Fischer contributes to the OTLA Guardians of Civil Justice at the Sustaining Member level. Her firm is at 385 1st St., Ste. 221, Lake Oswego, OR 97034. You can contact her at 503-635-3548 or [email protected].
See Protecting Vulnerable Children p. 44
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