Keefer: Resolve in new year to remember the family in family law

Keefer

By Jan K. Keefer

After the holiday season, I am grateful for time spent with my family and friends. The holidays have always been a special time in our family — memories of my own childhood surface, and they are warm memories of time spent with four sisters, baking cookies and making candy with my mom and with my dad handing out gifts from under the Christmas tree while wearing his Santa hat. For my own family, I too try to create those perfect “Norman Rockwell” Christmas scenes — the house full of decorations, presents wrapped and under the tree, the table set for Christmas dinner and the blueberry French toast casserole with peppermint hot cocoa on Christmas morning.

Yet, as a family law attorney, I am always reminded so many families do not have the opportunity to spend all that time together. When families are divided by divorce, so too are the holidays. Christmas Eve may be spent with one parent, and then, if families follow the holiday schedule set forth by the Indiana Parenting Time Guidelines (IPTG), Christmas day is shared by the parents. I often hear from my clients how difficult this is for them. But really, isn’t it most difficult for the children?

Like many family law attorneys, I find myself fielding phone calls from clients about holiday schedules beginning mid-November and continuing right up to Christmas as disputes over holiday time arise between parents and they turn to their lawyers for help in achieving a resolution. This year, I heard the same form of these same questions from a number of clients: “How can they take that position? Doesn’t opposing counsel have some duty or responsibility to talk to their client and help them understand how they are hurting the children?” My answer is generally the same: “I don’t know what conversations opposing counsel has with their client. Perhaps they have had these conversations.” As attorneys, I understand that we do have a responsibility to advocate our client’s position. Regardless, it also seems that we also have a responsibility to help our clients see the big picture as well as the impact that their actions may have on their children.

Arguably, our Indiana Rules of Professional Conduct may provide a duty to look beyond strictly the law when counseling our clients. Rule 2.1 of the Rules of Professional Conduct provides as follows: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” The commentary to this rule provides additional guidance, including that a lawyer may have a responsibility as an adviser to indicate to our clients that more may be involved than strictly legal considerations when approaching a situation. Thus, if there was not a duty to do so, there is at least some responsibility on our parts to have our clients consider the impact of their actions, choices and decisions on the children’s lives and their families.

I understand that these choices can be hard for our clients — each wants to spend as much holiday time as possible with their children — and generally, each side has some cherished traditions that hold importance for them and their extended families. But what do the children want? This year, one of my clients, who does not want to be divorced, was insisting upon certain time with his children, in part to show his soon-to-be ex-wife the results of her actions for filing for divorce. The IPTG holiday schedule would make the Christmas holiday “his” holiday this year. I asked him, though, what his children might think of his plans. He then realized, that even though this was “his” Christmas holiday, that his children would feel bad if they did not spend Christmas Eve night in the only home they had known and wake up Christmas morning in that home. He asked me then if we could work out some alternate arrangements for the sake of his children, and we were able to accomplish an alternate schedule that accounted for his children’s feelings and desires rather than his own.

As attorneys, we can only counsel our clients, and we cannot always control their actions. But hopefully, we can help them understand how their actions may impact their children, even indirectly. Parents need to be careful not to place their children in the middle — and not only with words, but by their actions. One of my clients received a gift from his 8-year-old son, wrapped in a box provided for him by his mother. Unfortunately, the box had previously been used for feminine hygiene products. Of course, the young boy did not understand what the box had been originally used for or the message that his mother may or may not have been trying to send to the father by providing the box to the son for his use for a Christmas present. Yet, it put dad in an awkward position as he opened a gift that his son was so very excited to deliver.

So where does such a situation put as family law attorneys? My client understands that a purported violation of the IPTG in this scenario is difficult to prove. And a call to opposing counsel will most likely be met with the response of, “What do you want me to do?” We can’t control our clients’ actions – and, of course, there is no proof of ill will or ill intent.

Hopefully though, as family law attorneys, we can always remember to think of the children. These holidays can be most difficult for the children, when they would most likely prefer that their family unit had remained intact. They didn’t ask for their parents to be divorced, and they certainly don’t ask for the strife that often accompanies as a divorce. As attorneys, we have a duty to advocate our client’s position and that puts opposing counsel in adversarial positions. But perhaps, when it comes to the holidays and the issues of children, we can take off our adversarial hats and remember to keep in mind the “family” aspect of family law and its effect on children.

The holidays are over, a new year has begun, and it is time resolutions. Won’t you join me with my resolution to remember to keep the family in family law?•

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• Jan K. Keefer is a partner at Bingham Greenebaum Doll LLP who practices family law. The opinions expressed are those of the author.