BREAKING THROUGH “IMPOSSIBLE” BARRIERS IN CHILD CUSTODY MEDIATION*

Florence Bienenfeld* *

Mediators are very accustomed to work- ing with difficult problems and disputes, and with upset divorcing and divorced par- ents. There are however some parents who continually sabotage the possibility of ever reaching an agreement or of getting things settled. It is both fascinating and often frus- trating to observe the way these parents see the other parent as causing all the problems. Both parents appear blind to how they themselves make the situation worse and how they each sabotage their own children. These parents go round and round endlessly, much like the couples Dr. Joan Lachkar describes in her article in this issue, who want to remain bonded and do not actually want their conflicts to end.

The saddest part about these intensely emotional, non-ending parental conflicts is the way their children are hopelessly trapped in the middle.

In earlier articles (1984 and 1985) Dr. Lachkar emphasizes the importance and deep need of these kind of couples for empathy, special attention and support. Unfortunately, court mediators usually do not have this extra time to give. Since children’s lives hang in the balance, when- ever possible I do extend myself to parents, and sometimes a little extra effort on my part makes a positive difference, as in the following case example.

* This article and the preceding one on “Narcissis- ticlBorderline Couples: Implication for Mediation” are companion articles.

* * Florence Bienenfeld, Ph.D., M.F.C.C., Family CounselorlMediator in private practice in Marina Del Rey, California, was a former Senior Family CounselorlMediator of the Los Angeles, California Conciliation Court. She is the author of My Mom and Dad Are Getting A Divorce, EMG Corp., St. Paul, Minn., 1980; Child Custody Mediation, Science and Behavior Books, Palo Alto, California, 1983; Helping Your Child Succeed After Divorce, Hunter House, Inc., publishers, Claremont, California, 1986.

Janet and Leonard were the kind of par- ents who needed special attention. Janet telephoned for an appointment. She said she wanted to discuss a very difficult situa- tion regarding her children and their father. She explained that Leonard had taken their nine-year-old son from school over a year ago, and she has had no contact with her son since then, except for a few phone calls. Their seven-year-old daughter has remained with Janet. Janet also told me that she has filed felony charges against Leonardo for chi Id-steal i ng.

On the day of her appointment Janet told me more: ‘‘Leonard0 was against the divorce. I was his property. According to him I had no rights. When I talked about leaving a few times, he became violent and hit me. I didn’t bring it up again. He was becoming more and more depressed, and one day I found a gun under the couch cushion. He had threatened to kill me if I ever left him. He’s a violent man. I was terrified of him.”

Janet continued, “One day while he was at work I left with the children. It took him a year to find us. I had to do it this way be- cause he wouldn’t talk about a separation or divorce. I couldn’t talk to him or make arrangements.” Janet said she was very concerned about her son, Jason. She did not know where they were living. Every once in a while Leonardo would call and let her talk to Jason. He sounded fine but she knew he was missing her and his sister. She ex- plained that Leonardo never had a close relationship with their daughter, Lisa, but that he was always very close and doting with Jason and was probably taking good care of him. She added, “The last time Leonardo called he seemed motivated to make some sort of an arrangement. That’s why I came to you. I need your help. Leon- ardo said he won’t make any arrangement

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CONCILIATION COURTS REVlEWlVOLUME 24, NUMBER llJUNE 1986

with me unless I drop the felony charges against him. But how can I do that? I don’t trust h im .”

When I asked Janet what kind of an arrangement she would like to make regard- ing the children she replied, “I want both children with me during the school year and they can spend the whole summer and holidays and weekends with Leonardo. I want to work out a custody arrangement. At this point I’d even let Jason live with him as long as I could see him. The kids should both be with me but I decided not to fight him.”

Janet added that she wanted Leonardo’s cooperation regarding the divorce and that after the divorce was final and if an agree- ment could be reached, only then would she drop the felony charges.

What I suggested was that the next time Leonardo called she ask him to call me. I told her that I would speak to him and per- haps arrange another appointment for her, during which time Leonardo could call, so that we could all discuss the situation together. She agreed that this would be a good plan.

I heard from Leonardo one week later. He told me he was interested in working out an arrangement providing that he would have an ironclad guarantee that he wouldn’t be discriminated against because he had taken his son. He said that he had the right to take Jason, after all, hadn’t Janet hidden the children from him? He said that he wanted the charges dropped in such a way that it would reflect that there was no basis for the charges in the first place.

Leonardo talked about the Catch 22 sit- uation he was in: He was willing to ex- change children with Janet during the coming school vacation, but if he were to make an arrangement to exchange the chil- dren, he could be thrown in jail.

I expressed empathy for his situation, “This must be a very painful experience for you, hiding out and all. What arrangement would you be willing to make?”

Leonardo replied, “I want joint legal cus- tody of both children and physical custody of Jason during the school year. We can

exchange the children during school vaca- tions. Once I feel safe, then the children can spend time together with each parent. If any disagreement would arise again then we would agree to have mediation before getting attorneys or going to Court.”

I asked Leonardo if he would be willing to call back at a time when Janet would be in my office and possibly the children could also be available, so we could discuss the situation and try to resolve this complex situation. Leonardo accepted. A date for another conference was set. I notified Ja- net and she agreed to come and bring Lisa.

On the day of her next appointment Ja- net arrived with Lisa. Leonardo was to call me at 2:30 p.m. which was one-half hour hence. While Lisa waited in the waiting room Janet brought me up to date on what had happened since her last appointment with me. She sounded actually quite optimistic as she told me that she and Leonardo had talked on the phone and were near to reach- ing a financial agreement. There were only a few disputed issues left. She thanked me profusely for helping her, “You must have really handled him right. We’ve been to other counselors and nothing was ever resolved. The counselors all threw up their hands and said they couldn’t help us.”

Janet told me that she had a meeting a few days ago with the District Attorney for the purpose of trying to expunge Leonardo’s child-snatching felony charge from the rec- ords. Otherwise Leonardo would not be will- ing to discuss the exchange of the children. She expressed concern to me about this, because the D.A. had told her that it may not be possible to expunge his felony charge from the records. She was willing to write the statement Leonardo wanted for the record.

I then met with Lisa. Lisa told me she doesn’t really think a lot about what is going on between her parents. Before her mother left she used to feel upset, scared and wor- ried when her parents used to yell at each other and even hit each other. After her mother took her away she felt lonely. She missed her friends and people she used to see.

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Lisa told me that she hasn’t seen her father for a long time and that it has been hard for her not seeing her brother. “There’s no one to play with at my house.”

She added optimistically, “I think I’m going to get to see my dad when I get a vacation next month. Mom said she and my dad might exchange Jason and me.

When I asked Lisa what she wished would happen now she said sadly, “I’d like it if I could see my brother.”

I wondered what Lisa’s understanding was regarding how her brother came to be living with his father, so I asked, “How did it happen that you are living with your mother and your brother is living with your fat her?”

Lisa repled immediately, “My brother got kidnapped by my father at school. He came to school and took him.”

I asked her, “Why do you think he did that?”

Lisa answered, “I guess because he wanted some company at his house. I’m glad he didn’t take me.” Lisa gave me per- mission to share what we talked about with her parents.

With Janet and Lisa in my office we awaited Leonardo’s call. He called promptly at 2:30 p.m. as arranged and remained on the phone with me for one and one-half hours.

After a warm greeting, Leonardo told me that his son, Jason, was available also. I told him that I had just spoken to Lisa alone and asked i f I might speak to Jason alone too. Leonardo called Jason to the phone.

I introduced myself to Jason and told him that my goal was to try to help him see his mother and sister, and help Lisa see her father. My first question to him was, “What do you think is going on between your parents?”

Jason replied, “I think they don’t get along. I can’t help very much. I don’t know when I can see my mother and sister. They are afraid someone will hide one of us.’’

When I asked him how that made him feel, Jason answered, “Frightened and sad.

I miss my sister and mother. My mother was trying to hide us. She might try to do it again.” “I’m scared to go with my mother. But I still miss her and love her. I miss my sister very much too.”

I asked Jason what he would like to see happen now and he replied,“l’d like to be with my sister sometimes. I’d like to visit my mother and sister too, but I think it’s going to be a long time for me to see my sister. Jason gave me permission to dis- cuss what we talked about with his parents.

When Leonardo came back on the line, I summarized the children’s interviews for both parents and I expressed my deep con- cerns regarding the children, along with my desire to assist these parents in reaching some agreement as soon as possible.

Afterwards Leonardo told me how up- set he is about the felony charges against him, “I don’t want to end up in jail.’’ I ex- plained to him that Janet had been to the D.A.’s office and was trying to have the charge expunged, but that she was told that this may not be possible. I told him that Janet was willing to make a positive statement about him on the records, what- ever he wanted her to say.

Leonardo began to talk about how up- set he has been since their last phone call when they had discussed the financial set- tlement. “If it isn’t all settled then I won’t work out anything regarding custody.”

He said over and over again how wronged he has been, how the Courts are so unfair to fathers, that he wants the Courts to show that he was right, that he had the right to take his son, and that Janet was wrong in leaving and taking the children away from him.

I tried to help Leonardo to focus on his children’s pain and his children’s needs, but he kept repeating over and over again how badly he had been treated. I began to confront him a little: I told him that in spite of his own pain he should try to correct the painful situation for his children. I explained that trying to prove he was right and that Janet was wrong might take forever and by that time his children might be grown, de-

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prived of one of their parents and of each other.

I encouraged him to separate the finan- cial and legal issues from the parenting issues, and I told him that I wished he would be willing to work out suitable arrangements for exchanging the children during Christ- mas vacation.

My words did not seemingly bring about the response I had hoped for. Leonardo im- mediately began to repeat his position of being wronged and wanting satisfaction. I told Leonardo and Janet that I did not think I could help them unless they were willing to put down some of the barriers.

I told Leonardo that he may never get the satisfaction in the Court that he is seek- ing and that Janet is agreeing to do what- ever she can to exonerate him.

Leonardo ended our conversation by saying that unless Janet agrees to his f i - nancial proposal he would not discuss ex- changing the children further.

Before he hung up I repeated to Janet all his remarks. Her response to the last one was to say: “Tell him to make me a responsible offer and I will accept.”

Leonardo was to get back to Janet with his offer. After Leonardo hung up Janet expressed her deep frustration to me and disappoint men t:

“He’s so difficult to deal with. It was like this all throughout marriage, a crazy dance, him pulling me back and forth. I don’t want to have to deal with him anymore, but I want to see Jason.”

Two days later I telephoned Janet to try to arrange one more meeting. Janet said she would tell Leonardo this when he called. A week later she left this message for me: “He agreed to talk to us again. He seems to have come around now. He said he’s willing to discuss exchanging the children for Christmas.”

I returned her call and set up another appointment for them. Leonardo would be calling us on that date and time.

Janet arrived promptly for our appoint- ment. She told me, “I’m tired. Dealing with him is like being on an emotional roller coaster. One day he’s agreeable and the

next he changes his mind and won’t agree to anything.”

While we awaited Leonardo’s call, we discussed their arrangements for exchang- ing the children during Christmas vacation. Leonardo was to leave Jason at Janet’s parents’ house and pick up Lisa there. A week later he would return Lisa and pick up Jason.

Next Janet talked about her idea for a plan for summer vacation. Both children would spend one month together with Le- onardo, then Lisa would stay and spend another month with Leonardo and Jason would spend that month with Janet. The last month both children would be together at Janets, then Jason would return to Leon- ardo for the school year. She ended by saying, “ I don’t know i f we’ll be able to work it out though. I’m not sure I could trust him.”

Leonardo telephoned as arranged. Af- ter a mutually warm greeting Leonardo said, “Last time I was too jittery about that thing with the D.A. I still am. What is Janet plan- ning to do? Is she able to have the D.A. drop the charge? Otherwise I won’t expose myself to being arrested.” I summarized Leonardo’s concern to Janet.

Janet responded and I conveyed her re- sponse to Leonardo. She had arranged with the D.A. to drop the charges against Leon- ardo. In exchange Leonardo would sign an agreement regarding exchanging the chil- dren.

Leonardo’s response to this was, “The D.A. isn’t doing me a favor, I was charged falsely in the first place. It is his duty to drop the charges.”

I summarized his statement for Janet and I acknowledged Leonardo’s feelings of being wronged. Janet reassured Leonardo that she would have the D.A. write a letter stating that the charge was dropped and that he was falsely charged in the first place.

Leonardo said he was satisfied about that issue and was willing to discuss plans for Christmas vacation. Over the next half hour an agreement was reached between Janet and Leonardo. I wrote it up for them and Janet signed it. Leonardo gave me a

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post office box number to send it to. He was out of state. He told me he would send the agreement back to me very soon and he thanked me for helping him, and Janet ar- ranged to discuss a few items regarding the divorce that evening on the phone.

I told Leonardo and Janet that I hoped everything would go smoothly from now on, and that there would be no more of this kind of pain and problems for them and for their children. I closed our conversation by saying, “We can’t go back and do it over again, but we can make it better from now on.”

Janet left my office saying, “When I see Jason I’ll believe it.” She told me she was feeling numb.

The following morning Janet called me to say that their phone conversation went very peacefully last night and that they were able to reach an agreement regarding the divorce and financial settlement. She was going to have an attorneylmediator write up their agreement for them.

Before she hung up she said, “I’m re- ally happy. Things look really good. I want to thank you for all your help. Last night Leonardo and I discussed Jason. Jason is having a lot of problems. He has no friends. I suggested he take Jason to see a coun- selor. I hope he will.”

Within one week Leonardo sent back their agreement signed. The exchange of children took place as scheduled without incident and Janet and Leonardo’s divorce settlement was finalized and filed by the attorney mediator that Janet had engaged.

Some parents hold back from settling to stay connected, to hurt each other or to win advantages. The ones they are hurting are their own children. As a mediator it is my job to try to ease things for the children as much as I can by providing parents with both the support and structure inherent in the mediation process. Adequate time must be taken, especially with difficult parents and situations. For a mediator not to give sufficient time is short-changing the chil- dren.

Not only should adequate time and pa- tience be given by the mediator, but when indicated and possible parents andlor en- tire families should also be referred for post- divorce counseling to resources within the community, such as Family Service Agen- cies and private practitioners skilled in work- ing with these families.

It saddened me very much to hear one court mediator at a conference say that less than one hour was allotted to each family in that district. I do not consider that mediation. It is lives we are dealing with and what happens for these children will affect all of our lives eventually.

References Lachkar, Joan, “NarcissisticlBorderline Couples: A

Psychoanalytic Perspective to Family Therapy.” International Journal of Family Psychiatry, 1984.

Lachkar, Joan, “NarcissisticlBorderline Couples: Im- plications for Treatment.” Pending publication, 1985.

In Conclusion: After a separation or divorce children

need things settled as soon as possible.

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