09/20/2012 05:27 pm ET Updated Nov 20, 2012

Custody Thoughts

There is no aspect of marriage, and for that matter divorce, that engenders more potential emotional or financial mayhem than children and the issues of child custody. I certainly appreciate that any normal parent loves their child, wholly and unconditionally, and typically wants to spend as much time as possible with them. The responsibilities attendant to being a "good" parent can be daunting to most couples. The prospect of facing those responsibilities alone are even more terrifying.

It always amazes me to see how two people that created a child out of love can become so embittered and hateful to each other such that the welfare of their own children would become secondary to their own happiness, usually out of retribution to their former spouse. Custody litigation is the pinnacle in the battle of the divorce war, and more frequently than not, it leaves the children permanently injured with the shrapnel of the battle.

Is it better to endure an unhappy marriage for the sake of the children? I am a firm believer that it is not. If you are miserable and unhappy, your children will be too. Children, even very young ones, are incredibly perceptive. They can sense an atmosphere of trust and love, and have the equivalent emotional radar when it comes to unhappiness and hostility. You may think you are fooling your kids, but they know when Mom and Dad are really happy, and when they are really not.

While this may be a sad statement about the status of our marital society, it is also a stark statement about the reality of life in America today. People get married, have kids, and get divorced. It is all part of the American Dream -- I mean the American reality. There is no longer the divorce stigma -- "Don't play with Anne's kids, she is going through a divorce." Instead, divorce is just another step in the modern maze of our lives.

There are a few basic options you may have should your family become divided. First, and by far the best way to handle this incredibly difficult situation is to reach agreement with your spouse about the parenting plan you will have for the children. Depending on your circumstances, this plan can be regimented and detailed or open and ambiguous. The key is to simply reach a mutually acceptable plan as fast as humanly possible.

Second, you can decide to file a custody action as part of your divorce and ask the court to decide all of the details concerning the arrangements pertaining to your children. If you elect for this alternative, you will be relegating yourself to a process that was not in any respect designed to protect you or your children from harm. While the court is always supposed to act in the "best interests of the child", the other litigant (your soon to be ex-spouse) and his or her lawyer are not so obligated. Neither are the therapists that you and your spouse may retain, the expert witnesses, the in-laws, Pastor, co-workers, lovers, ex-spouses, neighbors, friends and former friends. And trust me, everyone will have something to say.

Third, you might engage in what is known as an alternative dispute resolution process, or mediation. In many instances, your participation in this process may actually be judicially mandated.

Mediation remains a process of conciliation. It is designed to reach an agreement as opposed to just a decision. A good arbitrator is not necessarily a good mediator and that distinction is critical to the success of the process. Just as you are charged with undertaking a degree of due diligence with respect to the selection of your lawyer, the same responsibility is incumbent upon both you and your lawyer when deciding to involve an independent party to help you resolve or decide the welfare of your children.

Unfortunately, some people hate each other so much or are so mentally imbalanced that they drive Judges crazy. These same individuals are also the ones that use the children as economic leverage. It is in essence the ultimate blackmail -- give me this or I'll take the kids. For them, it is all about the money, and the children are only a convenient means to accomplish an economic objective.

You must always be cognizant of the shock and pain a divorce causes a child, and you must place their interest in the forefront. The pain and agony of divorce is often seen most vividly in the hearts and eyes of your own children. Custody litigation frequently destroys young lives rather than protecting them from the parents that are supposed to love them.