On April 30, 2013, the editor of a divorce outlet called TrashTheDress asked me to do a Q & A feature with its readers, wherein I provide them with a short list of tips for women going through divorce. The editor forwarded me six of its readers’ questions, many of whom happen to be mothers. Since family law is state specific and since I am only licensed to practice law in California, the editor was well aware that my answers would not be about the law.
While I was going through the questions, I was troubled by the way in which they were worded. It has long been recognized that the meaning of words influences human behavior. If two people had endured similar traumatic events and one were labeled a "victim" and the other a "survivor," would they be perceived the same? Please keep in mind that they would both have been both "victims" and "survivors." For this and other reasons, many a parent has been “called out” in court by a judge, if they refer to their child(ren) as “my kids” or something along those lines.
The following are examples of words or wording used in those questions that caused me concern and my suggested re-wording:
Children typically have two parents, regardless of the parenting plan and timeshare schedule. However, by saying “my kid(s)”; “my child(ren); “my daughter”, or “my son”, parents make it appear as though their child only has one parent – at least in their own mind. This in turn causes them to act as though they are the only parent.
By the same token, by referring to the other parent as “the co-parent”, “he”, “she”, and “my ex” or the like, you essentially dehumanize them. The following is from an article titled Demonizing the Enemy a Hallmark of War: "’The secret in propaganda is that when you demonize, you dehumanize,’ said James Forsher, a film historian and documentary filmmaker who has studied propaganda films, and who is an assistant professor of mass communications at California State University, Hayward. ‘When you dehumanize, it allows you to kill your enemy and no longer feel guilty about it,’ he said. ‘That is why during World War II, a lot of caricatures became animals. … You can kill a monkey a lot more easily than you can kill a neighbor.’" Parents should not be dehumanizing or de-parenting the other parent for the exact same reasons.
Within the context of family law, the following are some of the terms which have been found to negatively influence people's behavior: child custody, visitation, access, sole, and primary. In an effort to gain a better understanding for the reasoning behind the response, it is important to consider the meaning of those terms.
Historically, when such proceedings involved minor children, they involved issues pertaining to child custody and visitation. Child custody is "the term applied to the support and control of a child that is determined by the court when the parents of the child are divorced or separated." Since minor children are not legally competent to enter into contracts or otherwise give consent for themselves, parents have the right to make decisions relating to their health, education and welfare. When parents are no longer a "unit," so to speak, this authority is frequently referred to as "legal custody" and the timeshare is referred to as "physical custody."
Child custody is a "'fighting' term associated with power, control and ownership of the child by one of the parties." Sole custody is defined as "the care, control, and maintenance of a child, which a court may award to one of the parents following a Divorce or separation proceeding." Primary custody "refers to the parent with whom a child lives after both parents separate or divorce." Joint custody is "a court order whereby custody of a child is awarded to both parties. In joint custody both parents are 'custodial parents' and neither parent is a non-custodial parent; or, in other words, the child has two custodial parents." The term "joint custody" is a fighting term in that one parent typically wants it and the other does not.
Unfortunately, unless the parents have joint custody, one will have visitation, which is defined as "the right of a parent to visit a child who is in the custody of the separated or divorced spouse or a guardian." Not surprisingly, the term "visitation" acquired "connotations that left non-custodial parents feeling tangential, limited, peripheral, and involved in an awkward and even unnatural relationship with their children.... In attempts to minimize the negative connotations of the term 'visitation,' visiting parents increasingly went back to court to request joint custody.... With such a designation, these parents felt at least equally empowered in their legally designated role, even if not in their actual scheduled time with their children." Rather than using the term "visitation", some jurisdictions use the term "access," which means "the ability, opportunity, permission, or right to approach, communicate, enter, pass to and from, or view without interference or obstruction." The term "access" does not appear to be any less offensive to a parent than the term "visitation." In other words, terms such as "custody," "visitation," and "access" have become known as "fighting words" and led to what we frequently refer to as "custody battles," wherein parents battle over possession of their children, as if they were chattel or pawns in a game of chess. Don't such terms, by definition, create "win/lose" dynamics?
"When we look at what hideous things people do to one another in order to prevail in the fight over child custody - to win custody as the prize - and at how devastated the party is who loses and is instantly relegated in a day or half-day of trial (for let's face it: most courts do not think this coin-toss is very important) to the dehumanized status of ex-parent; when we see how badly traumatized and permanently warped the minds of children are after participating in the custody litigation and being actively recruited by one side or both to do so...."
In an effort to change the "win/lose" dynamic and hopefully put an end to the parental fighting caused by emotionally charged terms, many jurisdictions have eliminated them entirely. They have been replaced with more neutral and conciliatory terms such as "parenting plan," "time-sharing," "parental responsibility," "parenting arrangements," "parenting time," "residential time," and "contact." These changes have occurred in England, Wales, Australia, and in many states in the U.S. "California, unfortunately, for complex political reasons, has been a staunch hold-out on these changes legislatively, but many enlightened practitioners use the new language, nonetheless."
Do you think that a larger timeshare "victory" has the same cachet as taking home the custody prize? Does the parent with less of a timeshare feel shamed as a parent? Words are powerful.... Think about it.