Monday, July 9, 2012

What can we learn from Katie Holmes divorce filing against Tom Cruise?

Tom Cruise & Katie Holmes WHCAD If you live in a cave, then maybe you haven't heard that TomKat is no more.  As reported by TMZ, Katie Holmes has filed for divorce from Tom Cruise and according to the pleadings she is seeking sole legal and physical custody of their daughter Suri.

What I find interesting is not the fact that another celebrity couple has called it quits.  Celebrities getting divorced is hardly even surprising news anymore.  Okay, it is a little interesting that this would be Tom's third divorce and, according to the Huffington Post, all three occurred when his wives turned 33.

But what I find most interesting is how the media has been reporting the divorce filings and what it says about how we perceive custody battles. Specifically the Huffington Post had the following headline on an article about the divorce filings: Suri Cruise Custody: Katie Holmes Reportedly Seeks Full Custody In Divorce From Tom Cruise

When I first read this I immediately cringed, because I am so often telling clients that the words "full custody" are meaningless.  What is "full custody"?  Is it sole legal and physical custody, or just sole physical custody?  Does it mean Katie doesn't want Tom to ever see their daughter?  Does it mean Katie thinks she is the only parent to Suri?  Probably not, but that's what asking for "full custody" can sound like to the person who is being asked to give up custody of their child.

The word "custody" is a loaded term already, and the term "full custody" is even worse.  The terms "legal custody" and "physical custody" have legal meaning but they don't actually tell you how to co-parent a child as separated parents. Parents who are separated or are separating should be considering what is in the best interest of their child.  Except in very unusual circumstances (when a parent is destructive and dangerous), a child always benefits from having both parents involved in their life.  In addition, in most cases both parents will feel strongly that they should stay involved in their child's life.

Telling the other parent that you want "full custody" is akin to saying "I'm a parent and you're not."  Is that what Katie Holmes meant to do?  Probably not, despite the way it was being reported by the media.  In fact, the legal document for filing divorce requires that a request be made on custody.  Many times the legal pleadings are restrictive on what you can ask for depending on how you plan to proceed with the case and this may have been the best way for Katie's attorneys to complete the form even if "full custody" was not their intent.  Because Tom likely has a team of lawyers he probably already knew the difference between the legal document and the practical reality.

Unfortunately, though, many divorcing parents begin the divorce process with the misunderstanding that they should seek "full custody" or that their spouse is trying to do so.  Imagine someone/anyone trying to take your child away from you and you can begin to understand the amount of hurt that causes parents.  These parents are already hurting because of the loss of their marriage, and now add to that the perception that their spouse is trying to take away their children. That is a recipe for disaster, and it is not hard to figure out where the term "custody battle" comes from.

But it doesn't have to be that way.

There are two movements towards greater civility in the Divorce process which overlap in this instance: Collaborative Divorce, and Shared Parenting.

Collaborative Law is a form of alternative dispute resolution where both parties in a dispute have their own attorney, but those attorneys agree not to go to Court. The goal of the Collaborative process is to reach agreements through negotiation and to avoid the expensive and emotional experience of Court. In the context of family law, Collaborative Law can be used to resolve disputes involving divorce, child custody and support, alimony, division of assets, paternity, and actions for modification. The process can also include other professionals such as financial planners and mental health professionals using a team approach to help negotiate and settle disputes.

Shared Parenting doesn't necessarily mean "equal parenting" but rather a recognition that both parents will be involved (in most cases) in the child's life.  The goal of speaking about parenting in these terms as opposed to adversarial terms is in recognizing the shared roles that parents have and the cooperation necessary to parent a child together even if from separate households.  That relationship is defined through a parenting plan, that may still use the legal terms "custody" but is focused primarily on the relationship and only uses the legal terms to ensure understanding by the courts.

A Parenting Plan is a comprehensive agreement which sets out both the time that children will spend with each parent as well as the rights and obligations of each parent to the children and the other parent during their parenting time. It can include a holiday visitation schedule, pick-up and drop-off locations, and even agreements relating to what will happen if one of the children becomes ill. Parenting Plans can be made specific in instances where it is necessary to prevent future conflict, and they can be made flexible so that you and the other parent can make agreements outside of the parenting plan in unforeseen circumstances.

As we learn more and more about the destructive effect that custody battles have on the children, shared parenting and collaborative divorce will become more and more popular.

Even between Tom and Katie, despite the supposed request for "full custody" in the initial filing, they saw a way through the 'battle" to quickly reach an agreement and release a statement that they "are committed to working together as parents to accomplishing what is in our daughter Suri's best interests" (as reported by CNN).  In a divorce, that's the only commitment that still matters.
Read more about Collaborative Divorce here.

Read more about Parenting Plans here or try out our Parenting Plan Worksheet.

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