(Hons), BVC, LL.M, P.C.H.E
ACCORDING to some scholars, divorce can be similar to the death of a parent, affecting the emotional growth and social development of the children. The law has been designed to protect the rights and interests of children in such circumstances; however, the trauma that some children experience cannot be softened by legal doctrines. It is the responsibility of the divorcing parents to explain as age-appropriate to the children what is happening and how this will change their lives. It helps if parents remain cordial with each other at all stages of the divorce process, so the children do not pick up on any latent animosity towards a parent.
Some psychologists describe the ending of the divorce almost like a mourning process. As children settle slowly into a new routine, they may project their feelings of disappointment and confusion onto the custodial parent blaming him or her for the exiting parent’s absence. It can be a stressful and uncertain time for the entire family, and children need their parents and possibly professional assistance to deal with the disruption to the family unit.
Young children in particular, would not understand why their parents are no longer living together. They are likely to fantasize about reconciliation between their parents, hoping that the separation is temporary and that their parents will reunite eventually. When one parent moves away, especially to another country, re-marries and/or have a new family, feelings of displacement and helplessness may surface.
Lawmakers are also concerned that some children may be used as bargaining tools by the parents. For example, one parent may promise the other parent something in order to spend time with the children. Agreements and/or consent orders will be drafted with this in mind to curb the children being used a commodities as in a commercial transaction. The children’s well-being and welfare are paramount.
In a contested divorce, the children (unless the dispute arises over property/assets) can be caught in the middle of a battle between the parents and this hostility is detrimental for the children. It can affect their emotional and behavioural development if it goes unrecognised and/or untreated.
It may be difficult to process the lack of control that the non-custodial parent may be experiencing because he or she cannot be as involved in every decision regarding their children. He or she is no longer physically present on a daily basis, therefore it is no longer practically feasible to do so. The level of involvement would be determined largely by the custody arrangements and the degree of positive communication between the parents.
In our laws, the maintenance grant or child support is far too low and needs to be revised; it is not sufficient to satisfy the basic needs of a child of any age. The court has the discretion; this is usually exercised to increase the amount that the non-custodial parent is required to pay to the custodial parent based on his or her earning capacity, income, property and other financial means. The court also takes other factors into consideration such as the financial needs of the children; the standard of living that the family had prior to the petition for divorce; the age of the parties; the ages of the children; any physical or mental disability of the children; and the duration of the marriage.
In theory, the older the children (based on maturity levels) are when their parents are getting divorced, the easier it should be for them to communicate their feelings and adjust mentally to the change in the family structure. The children will look to their parents for guidance on how to manage the process; the treatment of the parent that is moving out of the family home and the family’s future.
In our jurisdiction, the divorce will not be finalised unless or until the parties have settled amiably or leaving this to the courts to decide, what the arrangements in terms of custody and maintenance will be for the children of the family. This clearly demonstrates the court’s view that the children have to be protected in the divorce process.
Ms. Trudy O. Glasgow is a practising attorney and court-appointed mediator at the law firm Trudy O. Glasgow & Associates and a mediator in Saint Lucia (and has also taught law at University level in the UK)*
This column is for general use only, for advice specifically for your case, please see your lawyer.
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