WE ARE PARENTS FOREVER

I am pushing an unusual form of childcare after divorce.

Divorce is always an ‘earthquake’ in the life of a family, particularly for the children of divorcing spouses. Often, these children prove also the hottest flashpoint in the divorcing parents’ dispute. Divorcing parents are not always able to separate the issue of sometimes legitimate personal animosities arising from the circumstances of the break-up of their marital relationship from the issue of the need to maintain a continuing, at least correct, relationship in order to continue to work together for the benefit of their children. “Please remember that you are entitled to have the worst possible opinion of your spouse as a partner. And yet, this does not mean that your spouse is by default as bad in a role of a father or mother. Please remember that your child needs both of you as parents. You are separating as spouses, but until the end – or at least until your children reach the age of majority – you will be ‘committed’ to each other as their parents.” This is the advice I usually give in cases of this kind, but it does not always remain effective. In the case of a bitter dispute, with the parents unable to cooperate elementarily and to share custody of the children following divorce, the divorce court usually has no choice. Following expert advice, it makes a comparison of the parental competences of the separating spouses, entrusting the continued custody of the son or daughter to one of them, reducing the powers of the other to the right of co-decision in important matters of the child (on the choice of school, treatment, travel abroad, etc.).

However, for a few years now – actually since 2009 – Polish family law has adopted an alternating custody (or custody) formula that has been in operation for years abroad. This involves divorced parents sharing custody of their child – usually in such a way that, at certain intervals, the father and mother exchange custody, both being alternating ‘lead’ parents. Neither parent is then “reduced” to the – sometimes unnecessarily contentious and humiliating – role of “outcustodial” parent. Such an ‘outcustodial’ parent usually lives permanently separately from the child and has contact with the child (including taking him or her to his or her home) at times agreed with the ex-spouse or specified in a court order. It is not surprising, therefore, that a large proportion of clients with such a status see themselves relegated to the role of ‘second-class parent’.

In the case of court-ordered alternate custody, the children of divorced parents usually ‘live’ either at their mother’s or at the father’s, changing places from time to time. Although this is usually a much better solution than the ‘classic’ one, it sometimes causes complications for the youngest persons concerned. By alternating between the father and the mother, the child is not rooted in one place (even if he or she has his or her own room at both the father’s and the mother’s), nor can he or she always maintain unhindered contact with his or her school and classmates after school.

One of my clients, despite having made a joint decision to separate from her spouse, managed to resolve the problem in what seems to be the optimal way. The spouses came to the joint conclusion that they were no longer able to continue marital life, but wanted to maintain respect for each other and do everything possible to ensure that their separation resulted in the least possible changes for their children.

For some time, the separating spouses shared a flat with their two children, but lived periodically in neighbouring houses – together with people with whom each of them had entered into a lasting relationship. The spouses came to the conclusion that it would be a stressful – and at the same time unnecessary – revolution in their children’s lives if, after the separation, they sold their current house, the children lost their peer environment in their current place, and were then forced to move to a neighbouring town to live with one of their parents and his or her partner, but without their father or mother – which would be resolved after a court-ordered “battle for the children”, which ruined most of the ex-spouses’ mutual relationships. Instead, the spouses came up with a solution that seemed as logical as possible, but to the lawyers – their attorneys in the divorce case – at least initially even shocking (yes, lawyers also sometimes sin by following the beaten track). Namely, they proposed that the children remain in their current place of residence, without moving permanently to places where their parents had established new relationships. The father and mother were to be staying weekly in their existing flat, alternating custody of their children there. A reversal of the traditional situation, in which, when the parents divorce, it is the children who have to adapt to the parents’ decisions (also by separating from the other parent’s daily presence, or changing their own place of residence) seemed optimal. The thing to be done was to convince the court of this solution.

As the opposing counsel also had a similar view of the case, we established a ‘united front’ during the hearing. We played “on the same team”, convincing the court of the admissibility and compatibility with the welfare of minors of such an… original educational agreement as the one drawn up by the parties. It was not easy, however, we succeeded. The children remained in the flat and environment they had known since their birth, “hosting” each week, alternating between father and mother. After time, it is probably fair to say that such an unusual arrangement has worked in practice. Thanks to the mature and extremely responsible attitude of the parents – and their openness to a solution that their lawyers thought so unconventional that they did not even initially consider it. 

As it turned out, sometimes it is the lawyers who need the ‘non-lawyers’. So that, in the course of seeking a solution based on the patterns operating among the jurists, the ‘non-lawyer’ occasionally stepped outside their ruts. And loudly shout “eureka!”.