Sound implausible?

All of the facts listed out above are bits of 3 different cases that I have had.  Domestic violence in the elderly population
is a significant issue, as is elder abuse – either physical, emotional, neglect or financial – and will continue to do so as the Baby Boomer population continues to age.

Some basic statistics:

In Multnomah County in 2009, there were 8231 calls about elder abuse, with 2,797 allegations in completed
investigations.  It is estimated that 84% of incidents regarding elder abuse are not reported.

Accounting to the National Council on Elder Abuse:

1990                            1996

Family member as perpetrator           31.9%                          36.7%

Spouse as perpetrator             15.4%                          12.6%

Grandchild                               4%                               7.7%

Type of Abuse

Neglect                                    47%                             55%

Physical                                   20.2                             14.6

Percent  victims that are women        68%                 67%

What is the causal connection in abuse as parties get older?

We usually assume that people  often get more mellow as they get older, there is less energy.  However, if alcohol or any kinds of drugs are involved when the person is younger, the impact increases as the person gets older, and aging symptoms are added to an underlying basic problem.

There is also the increased number of people that have dementia as they age.  Dementia interferes with ability to make
sound decisions as well as impulse control.

In Oregon, stated in terms of 000s, the following is true and projected:

Age 65-74        75-84   85+

2000                3.2       30        24

2010                3.5       34        39

2020                5.5       40        45

2025                6.6       52        49
(age when all Baby Boomers will be age 85)

So what about your neighbor?  What are her options?

She probably doesn’t want to be divorced, she just wants her husband to change his behavior so that she
isn’t in physical danger or financially threatened.  She probably also doesn’t want to call the police, because of not wanting to admit the problem to an outsider, and the possible censure of her children.   What’s left?  One possibility
might be a guardianship, assuming that you can get a legal determination that the Husband is incapacitated.

“Incapacitated” according to ORS 125.005 (5) means:

“a condition in which a person’s ability to receive and evaluation information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for person’s physical health or safety, defined as actions necessary to provide health care, food, shelter, clothing, personal hygiene and other care without which serious physical injury or illness is likely to occur.

That’s a pretty high standard.  How do you even get someone like the Husband to even be evaluated by a doctor?  Husband’s regular doctor is not likely to  have enough information to make any evaluation or recommendation.  Cognitive communication, or the ability to carry on a conversation, is one of the last skills to go because it the skill
most commonly practiced.  Doctors usually see patients for 15-20 minutes at a time, and are focused on only the
presenting symptoms.  By the time that doctors become aware of additional difficulties, enough to order a
neuropsychological evaluation, the patient will often refuse to take the exam, because they are not able to recognize their own impairment.

Wife could file for a guardianship, and if Husband’s doctors are able to support that he is incapacitated, a guardian will be appointed.  However, in the legal sense, Husband is not incapacitated.  He is able to take care of himself in such a
way as to avoid his own physical injury or his own illness.

Potentially, Wife could assert that Husband has a mental illness that causes him to be a danger to himself or others.  Again, Husband’s current treating physical may not have sufficient information or documentation to support that.  Depending upon the facts, the court may order that a psychiatric evaluation be done.

One area that doctors and mental health providers look for is whether the behavior is a significant change from other behaviors during that person’s lifetime.  Chances are pretty good that Husband has whipped out the accusation of her having an affair several times during the last  50 years, but aging has cause him to become more convinced that it actually happened.  Chances are also good that there was some degree of domestic violence prior to the person reaching age 80 as well.  So the behavior hasn’t really changed, only the degree of behavior.   So, even if Wife could force a psychiatric evaluation, which is doubtful, there is a significant risk that she permanently alienates Husband and will not be able to get a guardianship.

So what options areremaining?

Family Abuse Restraining Order:  Elderly people are reluctant to ask for this, even if it is appropriate.  They feel vulnerable, and are afraid of losing financial security, and companionship, even if it means putting their own health at risk.   In the case with the man coming at his wife with a kitchen knife, he freely admitted it in court order, saying that was the
only way he could get her to do what he wanted, and he saw nothing wrong with his actions.

There are also provisions for restraining orders against elder abuse, which include physical or financial
abuse by anyone, and are civil actions.  This goes far beyond a spouse, but can be anyone connected to the elderly
person.  This could include anyone, such as a family member, that helps a parent redo their will, or help them with
their finances.

By the time that the elderly are in their late 70s or 80s, they have often been married 2 or 3 times.  Who helps the elderly person can be a major source of contention, as you have children from different marriages, and children who are looking to protect their own parent, but not concerned about their parent’s spouse, which brings competing children to “protect” their
parent into play.

Divorce:  Secure at least half of the assets for the victim, and remove the physical threat.  Emotionally, however, victims over the age of 65 are more vulnerable, and fear being alone, even if they are financially secure.   In a recent case, the Husband is begging the Wife to come back, because he needed to be taken care of, the abuse was because of his drinking, his medications caused him to drink, and so he has taken himself off of his medications so there won’t be any more
problems.  She went back to him, and hoped that nothing further would happen.

If one child can prove that his parent is incapacitated, then the child can be appointed as guardian ad litem, and pursue divorce action, in order to protect the parent’s assets at the expense of the spouse, which also serves to protect the child’s potential inheritance.  Many of the guardianship and conservatorship disputes are between competing “families”.

As a significant number of  Baby Boomers age, the problems will continue to grow.  People, even children are reluctant to become involved because we want to respect an elderly person’s dignity and self-reliance, and because there are often family rifts that never heal over trying to protect an elderly person.  Sometimes the “protection” is abusive and takes advantage of the vulnerabililty.  Judges will deal with it as it comes in front of them, but are at a loss to prevent the problem from getting to the point that a judge has to make a decision.

It’s complicated, but if you know what your options are, at least you have more information to make a reasonable decision for yourself or for your aging parent.

So, how do you do a quick recognition of someone who has a  personality disorder, rather than just someone who is having an issue in a very  limited area of their life?   Bill Eddy,  in his book “It’s All Your Fault !  12 Tips for Managing People Who Blame Others for Everything”,  explains it like this.  When someone with  a personality disorder has a conflict or a problem, he gets M.A.D. – he has a  Mistaken Assessment of Danger.  This  isn’t just a problem that needs to be addressed, the person feels personally  threatened and attacked.  When a person  with a personality disorder gets M.A.D., the result is B.A.D. – Behavior that  is Aggressively Defensive.

If you are dealing with someone who does not have a  personality disorder, but is merely self-absorbed, the best way to deal with  that person is to ignore the person.  If the  person doesn’t get the reaction or reward that they are looking for, they will
usually shrug it off, and go looking for someone else who will give them the  reaction or reward that they want.  You
cannot ignore someone with a personality disorder, because the internal  distress continues to mount until they feel so threatened that they respond  with a reaction that is far in excess to the situation.  You have an employee who is continually
exploding in temper over problems in the workplace, or interactions with other  people.  You decide to terminate that
person.  How you terminate that person  must factor in whether the person is obnoxious or has a personality disorder.  The obnoxious person will get angry, storm  out, and file for unemployment.  The  personality disordered person will wipe out your computer system with a virus,  then come back to the work place with a gun.

Here are some of the tips offered by Bill Eddy.  Don’t take it personally.  You didn’t cause the narcissist’s internal
distress that cause a M.A.D. reaction, and you don’t have control over that  person’s world view that causes them to react in a B.A.D. manner.   Don’t give them negative feedback.   They can’t absorb the information because it
conflicts with their internal worldview, and the result is defensive  aggression.   Set clear boundaries in a
manner that is not emotionally charged, and don’t bend those boundaries.  Once you bend those boundaries, the
personality disordered person’s world view says that she/he is entitled to have  special rules, and that those boundaries don’t apply to them.   Eddy  recommends that you treat the person with Empathy, Attention and Respect –
E.A.R. – which allows the narcissist to believe that he has been heard, he is  not being ignored nor disregarded as “inferior” and allows the person to stop  believing that there is a danger to him.   Remind yourself to keep a healthy skeptism.  Then, if at all possible, end the relationship as soon as possible, because it is not always possible to know  what common, everyday mistake or occurrences, such as a voicemail system that  is out of order for two days, might trigger another Mistaken Assessment of  Danger.

Managing a relationship of any sort with a narcissist or  anyone with a high conflict personality disorder is difficult and
frustrating.  You will find yourself  saying “it’s not right that this person causes the problem, and I have to be
the one that walks softly.  What about my  frustration?”  You want so badly to tell  that person exactly what you think of them, and their behavior.  The problem with telling someone with a  personality disorder exactly what you think of them personally, and what they  should do about their behavior, is likely to trigger a far greater problem than  you want to deal with, and you might not be able to separate yourself from that  person.  As a divorce attorney, I  think about physical security for myself and
my office on  a regular basis.  I train my staff not to overreact to an angry  person on the phone, and not to hang up on them, without calmly saying “I am  not able to help you with that.  I am  going to hang up now.”   Vent to your
friends and colleagues if you need to.  Probably the first 98 out of 100 people who demand special treatment are
culturally narcissistic and self-absorbed, but the next  out of 100 will have a personality disorder  that is difficult to manage and potentially dangerous, either physically or  through litigation.  Recognizing the  difference allows you to manage your risk level better.

Yet the very discussion of cultural narcissism blurs the line between self-absorbed people who are aware of how self-absorbed they are, and the personality disorder of narcissism.  Personality disorders are not clear, bright lines. Personal disorders
are spectrums of behavior, but when it becomes a personality disorder, the person  has  less awareness of a bigger world perspective, in a way that affects their ability to function.  How you react to someone who is self-absorbed
but self-aware of being self-absorbed, and  how you must react and deal with someone who has a personality disorder
of narcissism is very different.

A clinical definition of narcissism is someone who has an extreme sense of self-centeredness and superiority.  A narcissist has a world view in which there is an exaggerated sense of self-importance. Tthat is their reality, there is no
room for an alternate world view.  They must be admired and they believe they are entitled to special treatment.  Iif they do not get it, then there is something wrong with you.  A narcissist takes advantage of others for their own gain and lacks empathy.  There is a chronic feeling of internal distress, with a persistent pattern of behavior that extends back to early
adulthood, and a belief that the cause of the distress is external.

There is a healthy amount of narcissism in any one who is very driven, or at particular times in their lives.  A new mother, for example, is convinced that her baby is the most special baby in the whole world, and that only she truly
knows what is best for that baby, from the brand of diaper to when you begin feeding solid foods.  Fortunately for all
new mothers, that perspective begins to change as you start to see the bigger world view, and you get more experience with other mothers and other babies.  Most politicians, by nature, are trying to sell their personal belief that they are unique and only that person can truly change the world.

Pathological narcissism, as opposed to cultural traits of narcissism, is different.  And narcissists can come into your life on a daily basis.  This came home to me recently.  I had a new client that I had told her that I would get the initial paperwork done within a week.  In the week after I met with the client, my office changed bookkeeping systems and telephone systems.  We lost voice mail for two days, and I was in court or preparing for court during those two days, so my normal office
procedures were not in place as to returning calls or returning voicemails.  On the 7^th day after I met with the new client, she came storming into my office, not stopping at the receptionist, and interrupting a meeting, hysterical because she had
been calling my office in the middle of the night and was not able to get my voicemail.  She began screaming that it
was unheard of for an attorney not to return phone calls within a few hours, that she couldn’t tolerate being ignored like that, and that she had not slept in two nights because of the anxiety of not being able to get my  voicemail.    That particular interaction was a warning sign to me that this person had more than the stress of starting  a divorce, that she had a personality disorder.  I spoke with her about appropriate boundaries, and that while I tried to  return phone calls within 24 hours, that it wasn’t always possible to do so.  She seemed to calm down, and I got
her the paperwork for review by the end of the day.  The next day, she left a voicemail while I was in a meeting with another client.  Two hours later, she began writing emails that this was totally unacceptable for her to be ignored, and what was I going to do to prove to her that she would never be ignored again.  I immediately wrote a letter stating that I was terminating my representation.  I was very careful not to give negative feedback to the person.  If you give negative feedback to a narcissist, you are not just commenting on their behavior, to them you are attacking them as a person and challenging their
worldview.  I stated that we had different viewpoints of appropriate boundaries of an attorney-client
relationship, and that she would be better to find an attorney with a viewpoint similar to her own.  This still wasn’t
enough, because three days later, she again came into my personal office, interrupting the phone call I was on, and demanded to know why I was doing this to her, and why I had changed.  It was clear that she had great internal distress and could only see external causes when her expectations about what she was entitled to were not met.

Ahh, I can hear you saying in your head “well, that type of situation would only come up for divorce attorneys.  After all, the worst in people comes out in a divorce, that’s why you would see more evidence of a personality
disorder.”    I don’t think so.  I think you see people with personality disorders every day.  I learn a great
deal from listening to my children’s stories.  My son is the manager of a tire and automotive repair shop.  He has a repeat customer, who comes in with her BMW that requires special oil, and demands the $19.95 oil change.  He explained to her that her car requires oil that costs $35 per quart, and that it takes more than the standard amount of
oil, or it would damage her car, and that for her car, the oil change will be $300.  She became outraged, and angry,
arguing long and hard that she was entitled to the $19.95 oil change, despite signs that clearly states the price is for standard grade oil up to 5 quarts.  She complained to corporate  headquarters that she wasn’t getting what she was entitled to, and that she will not tolerate being treated that way.   This client now has 35 formal complaints to corporate about why she is
entitled to a $19.95 oil change.  She keeps coming back because not getting what her internal world view believes she
is entitled to, creates internal distress that must have an external cause, or er internal sense of self will fall apart.

Maybe you think it is just lawyers and retail that have daily interactions with people that may have narcissist personal disorder.  I don’t think so.  My daughter is a teaching assistant for a graduate level biostatistics class.  One student became vry angry, because he had not gotten credit for his answer.  She pointed out that he had made a  fundamental mathematical mistake early on in the answer, with the result that  the entire analysis was wrong.  The student
became enraged because he felt entitled to credit for trying, even if he was  wrong, despite the fact that if that kind of mistake had happened in a work  environment, there would not be credit for trying.  The student then appealed to the professor,
and  then the dean of students, and  finally to the president of the University.  He had internal distress, and there had to be
an external cause to explain why his expectations of being treated as special  had not been met.

NEXT TIME: WHAT DO YOU DO WHEN YOU MEET A NARCISSIST IN THE
EVERY DAY WORLD?

In a divorce, the shifting psychological dynamics come up in many ways.  The most obvious is when child custody is strongly contested between the two parents.  If there is an abusive relationship to begin with, or a relationship where there is not a balance of emotional power between the parties, then causing self-doubt in a person who already has self-doubt has
obvious gains for the person making statements to encourage that self-doubt.  The person who has self-doubt, then begins to question their parenting skills and decisions, and may give the other parent legal custody and agree to a parenting
schedule that is  not for the benefit of the children, but because of the self-doubt. It also becomes an issue in spousal abuse.  The Aggressor will tell the Target that she imagined that she had been hurt, that it didn’t really happen.  If there is no physical evidence, there is no way to get outside verification, and even then, there could be more than one explanation as to how physical marks happened.  Another way is to normalize the abuse.  The abuse that the target experienced isn’t really abuse, everybody gets angry and strikes out physically, this is normal, and the Target is crazy for thinking it is abuse.

What is the solution if you are experiencing some of the “headgames” described here?  First, find one, two or as many people as you need, to give you a reality check.  Your lawyer is a great person to start with, because the lawyer is going to have experience with what is considered the range of normal behavior, at least in a divorce context, which is what you are
concerned about if you are going through a divorce.   Take a hard look at whether you are engaging in the kind of behavior intended to cause self-doubt to influence behavior.  As an attorney, I see and experience this on a regular basis.  Here
is an example.  A few weeks ago, I sent a colleague a judgment to be reviewed before submitting it to the court.  I made a mistake in reciting the day of the  month.  The colleague, who is a dear friend as well as colleague, immediately wrote back the following: “Stop.  Take a deep breath.  You are obviously not thinking clearly and are becoming sloppy in your reasoning.”
Without question, a mistake had been made, but it was only a mistake, not a serious problem in reasoning.  The
comment back was intended to create a power imbalance, to cause me to doubt the quality of my work, and to create a dynamic that could be used to influence the final outcome in the parenting schedule negotiations.  I recognize the statement for what it was, and responded with humor that it must be a thrill to catch me making a mistake.  Because I work with words, I have to review what I write to avoid  making statements that are about power, and not about resolving the issue.  If you can recognize it in yourself, you can recognize when someone is making statements that are not true, but intended to
insult, cause self-doubt and create a power imbalance.

Be careful in your word choice.  Using “I” statements are often helpful because they are not as often perceived as being an attack on the other person, because they describe how you feel.  Keeping the conversation less emotionally intense can allow for communication that is productive to resolving problems.  If you find yourself getting angry, then think twice about continuing to engage in the discussion.  Recognize patterns that the other person is not making statements to communicate information to you, but for the purpose of engaging with you, even if the engagement is negative.  If  you
recognize that pattern, then stop engaging, and end the conversation.  Pick up the conversation at another time,
when cooler heads prevail.  Look for ways to constructively collaborate, and work together, if there is a way to come to
a solution, but also look to make sure the conversation is about the issues, not about the power dynamics.  If a
productive verbal conversation is not happening, find another medium of communication.  If the other person
continues to make comments that are not about the subject, and you are feeling uncomfortable with the power dynamic, then stop the communications.  You don’t have to pick up the phone, or answer the email or answer the text message.

Let me give you an example of how a normal conversation can turn into gaslighting.  Wife texts Husband, who has the children, that she needs him to give her the raingear for the children because she is taking the children to get a Christmas tree the next day, and because he abandoned her by filing for divorce, she doesn’t have all of the kids’ clothes.  Husband could feel
guilty.  During the marriage, he would have wanted to avoid Wife becoming upset and angry and would have rushed out to
buy new raingear, thus feeding into his own self-doubt about caring for the children.  Husband could feel defensive,
and react emotionally that he may have filed the divorce, but she is the one who caused the breakdown of the family by her behavior.  Or Husband could focus on the only real issue, figuring out if there is raingear.  Husband should address that issue only, perhaps saying “the kids have outgrown all of their raingear from last year.  We will both need to look for more raingear for the kids to have at our houses.”  The last response clearly focuses on the real issue and doesn’t engage in the unproductive hook of the abandonment.

Wife may have a personality disorder, or just can’t let it go that Husband is not reacting by immediately fixing the problem by getting raingear for her.  She writes an email saying “I need the raingear now, and I expect you to get it to me tonight.  I can’t believe you are trying to hurt the children by refusing to allow them to wear their raingear.”  Husband should not be engaging at this point.  There is nothing productive to say.   Wife then sends another email “why haven’t you written me back confirming that you will get me the raingear?   Don’t you know that  you are supposed to communicate and cooperate with the other parent?  You are not cooperating with me, and clearly are not taking care of the children.”    Again, there is no productive response to that statement.  By addressing the issue directly, and by recognizing that the followup emails are not about the raingear, but about Wife’s feelings about the divorce, Husband is choosing not to engage.  Unfortunately, choosing not to engage may cause Wife to further escalate because it creates anxiety in Wife that she is being ignored, and may cause further escalation.  That isn’t Husband’s problem.  All he can do is control how he reacts, and look out for the impact on the kids.

Recognize when you might be wrong.  What you believe to be true may not be a fact.  Be open to considering whether the
other person might be right, and that your self-doubt is your own reality check.  Then, if you believe that you are
correct, look to see if there is “gaslighting” going on, and decide how you should best deal with the problem.

Most importantly, learning information about patterns of behavior, and doing a regular reality check on your own viewpoints, will help keep you grounded in reality, and appropriately centered and confident in yourself.

The impact of repeated, subtle power manipulations causes  significant self-doubt.  After a while,  people who experience that kind of emotional trauma react as if they have been  traumatized.   They do become sensitivento any kind of comments that causes self-doubt to an already fragile emotionalbstructure. They do  act in a defensivebmanner, far out of proportion to the original comment.  And the emotionally fragile person begins tobstrike out emotionally, out of a sense of self-preservation, causing their ownbemotional damage to their spouse and their children.  The person who originally caused the  emotional damage may not even be the spouse, it may be a prior relationship,  perhaps even a childhood   relationship.   The person who begins reacting to real or perceived emotional abuse can end up with significant personality disorder traits of their own.

There is also the very real possibility that either the   Aggressor (the person making the statements) or the Target has a personality   disorder, or at the very least, has traits of a personality disorder.  Someone who has a personality disorder has  very black and white thinking, with limited insight into their own  behavior.  The person has emotional reasoning, assuming that if he or she feels that way, it must be a fact.   Further the person often projects problems onto other people, so that he or she cannot be at fault.  This is especially true of narcissism, where the person has an extreme preoccupation with self, and feels superior to other people.  To a narcissist, if the gaslights are flickering, it is because that is the reality, and the other person must have the same reality.  The purpose is not to convince the other person that she or he is insane, but to have the narcissist view of reality confirmed.

Being the psychologically complex beings that human are, there is often another layer, in which is using the psychologically correct language becomes an emotional attack.    The first layer is the person who is emotionally targeted by another person (the “target”).  The second layer is the reaction and overreaction of the person being targeted, in a way that makes it appear that the person being targeted is the abusive person.  A third layer is when either the Aggressor (the  personal making the first emotionally attacking statements) or the Target figure out through some limited research on the internet what kind of language is psychologically correct to identify yourself as the victim.    Here’s what I mean.  First layer – Husband tells Wife that she is a terrible mother and the children would be better off with him and he should divorce her and take the children for the children’s protection.  The Aggressor is intentionally making statements to cause self-doubt, when the statements are not correct.  Second layer – Wife reacts by screaming at Husband, that she hates him, and he causes all of the drama by insulting her, and he should just die.  The Target defensively reacted.   Third layer – Husband then responds in an overly calm manner that Wife needs to make “I” statements, that she cannot appropriately have a reasonable conversation when she is overly emotional and accusatory, and that her emotional volatility is clearly symptomatic of borderline personality disorder.   By the time you have many levels of action, reaction and redefining action, it is difficult to
unravel who is the target and who is the aggressor.   By the  third layer, the Target has been hit with several attacks of self-doubt: her  parenting, her fitness as a parent, and her mental instability.  Nothing has been done to address the issue of the psychological attacks.    To make it more complicated, of course, it is possible that Wife really does have a  personality disorder, and her husband is really the target, not the  aggressor.  The behavior is the same.

Although it is more obvious in women, and occurs more often in women, the pattern of behavior is by no means limited to coming from men to
women.  It could just as easily have been the woman telling the man that he is the one being abusive because he is not responding to her demands in the manner that she requires.  Husband is then in a no-win scenario, because he is either abusive because he is causing wife to feel threatened, or he is abusive because he doesn’t recognize that his actions are causing wife to feel threatened.

STAY TUNED FOR THE NEXT BLOG ON GASLIGHTING IN A DIVORCE

The pattern of behavior is not just limited to attempts to convince the other person that they are mentally ill, but to convincing the other person of any negative trait.  An example would be making unkind comments about a person’s weight, repeatedly, and when the behavior is called out, the perpetrator of the unkind comments would respond “You are so sensitive!  I’m just kidding, why do you have to be such a drama queen all the time?”   Now, the person has received negative
comments about her weight, and about her ability to interact with people and her inability to have a balanced perspective.
What is missing?  The unkind comments have not been addressed.  By making a new negative comment, the real problem of the unkind comments can be shoved aside.

Culturally, women are more conditioned to value relationships, and to take actions which are non-confrontational.  Women will apologize for having an opinion before they offer the opinion. When talking, women will often pull their
shoulders in to appear less threatening, and when speaking, have inflictions that make their statements questions rather than opinions.  Women are given approval when they are self-sacrificing for others, particularly their children or husbands, at the
cost of their own self-worth.  Women have also had the reaction from early childhood that if they have a strong opinion
that a man disagrees with, she is told that she is a bitch, or emotionally cold, or unfeminine.  By the same token,
when a man has a strong opinion, he is often culturally perceived as strong and authoritative.  His strength of opinion
makes him more masculine.   Men are also not encouraged, again from early childhood on, to express their feelings, or to identify their feelings and to value the feelings of others.

Now, gaslighting refers to the intentional emotional manipulation of one person by another, to cause self-doubt, for personal
gain.  You don’t have to go far to see any number of reality shows in which unkind and insulting comments are made,
and audiences cheer when one person is emotionally abusive and the other person is emotionally hurt.  When that kind of
behavior is considered popular entertainment, it is hard to defend against a charge of being “too sensitive” and “too emotional” when you are insulted by someone with whom you have an emotionally intimate relationship.   The statements may not even be consciously manipulative, just thoughtless.  The purpose of the thoughtless statement, however, is to gain power over the other person.  If you experience repeated demeaning behavior from someone with whom who have an intimate relationship, spanning years, it can be a significant blow to your self-esteem.

STAY TUNED FOR THE NEXT BLOG ON THE IMPACT OF GASLIGHTING

Let’s look at each of the “major” decision areas, beginning with religion.  For many parents, raising
their children in their particular religious beliefs and practices is very important to them as parents.  Their
religious beliefs are fundamental to who they are, and they want their children to share in those beliefs.  So, if you
have legal custody, and you are a Protestant Christian, then you have the legal authority to require the other parent to only take the child to your church, and only allow religious instruction consistent with your beliefs, right?  Actually no.
In life, there is an enforced pluralism of religion to the extent that we have to publicly respect other people’s right to their own religious viewpoints, and in divorced families, there is also enforced pluralism.  If you are Buddhist, and don’t celebrate
Christmas, you are not going to be able to stop your ex-spouse from Christmas rituals, no matter how much they offend you.
If you celebrate Christmas, you don’t necessarily get all of the holiday time, regardless of whether the other parent celebrates the holidays.  Religious practices are usually considered part of the day to day decision making that each parent does.  Courts may make religious accommodations on a case by case basis, depending upon the impact on the child, but that is about
the child’s issues, not about allowing only one point of view.  For example, the one case on religion allowed
for a modification of parenting time to allow the child to attend church each week with the primary parent, but only because of the child’s psychological needs at that point in time, and allowed additional parenting time to compensate.  Even larger issues, such as whether a child should be allowed to be baptized, or become a member of a church, is not defined legally and often a significant source of contention between parents.

Medical decisions are a little clearer.  The legal custodial parent has the authority to select the medical care providers, and to make decisions such as whether the child should have surgery, or have medication prescribed by a doctor.  This general statement is not particularly  helpful in day to day practice.  If Dad is the custodial parent, and Mom has the child on alternating weekends, who makes the decision on Monday morning if the child is too sick to go to school?  Who makes the decision if the child should go to the doctor?  Judges and lawyers have very different viewpoints on this subject.  Some say that “of course” a parent should be able to make a decision as to whether the child is too sick to go to school,
and either parent should decide if the child should go to the doctor.  Some say that if parents do not have
agreement on medical decision philosophy, then the purpose of having legal custody to one parent is to have consistent medical decisions made.  This can have a dramatic impact on the child.  For example, one parent doesn’t
agree with medication being given for attention deficit disorder.  Even if the other parent is the custodial
parent, and has doctor prescribed medication, if the other parent then has the authority to decide to take the child to the doctor, then presumably the other parent can then tell the doctor to stop prescribing medication.  The doctor is not sure what to do, or who has legal authority.  Does the non-custodial parent have the authority to get medication for an ear infection but not for attention deficit disorder?   If there is a significant amount of parenting time to both parents, then inconsistency of
medical care can be a problem.  For example, in one case, one parent was having the child’s teeth straightened by
the dentist, and the other parent was taking the child to another dentist to undo the first dentist’s work, making the child’s mouth a war zone.

Educational decisions are both clear and unclear.  Generally, the legal custodial parent has the
authority to select the school that the child attends.  There are many educational decisions beyond
the school, however.  Who decides if the child needs to have special tutoring in spelling?  What if the child is skilled at math, and one parent wants to advance the child into the next math grade, and the other parent wants the child to stay with the child’s social group?  What if one parent doesn’t believe that 5 days a week of school are necessary for the kindergarten child, and makes the decision not to take the child to school on alternating Mondays?  That’s ridiculous, you say.  That could never happen.  Trust me, I’ve had that case.

The only way to have some of these kinds of questions answered is to have a very specific parenting plan in a court order.  You can put in the court order that the parent is required to take the child to school every school morning, and to
notify the custodial parent if the child is sick so the custodial parent can make a decision.  You can put in a court
order that the noncustodial parent is required to give the child medication prescribed by a doctor.   The problem
with these kinds of specific parenting instructions is that you cannot foresee every kind of parenting problem that could conceivable come up, and many judges will not make decisions on these kind of parenting decisions unless there is a
specific problem in front of the judge, and the judge is convinced that there needs to be a specific rule.  Judges do
not want to micromanage parenting decisions, because presumably parents have the skills and ability to make their own parenting decisions.  This has the regrettable result that the stability that children need is lacking for months and sometimes years, while the problem is developing, and children become an experiment to see the impact of different decisions by different parents.

As you are negotiating your divorce, and you are thinking about what is important to have stability and clarity, keep in mind that if you want to have it enforced by the court, then it needs to be specifically in the order.  If it isn’t in a court order, you
have no idea if your parenting authority will be enforced  in the future.  Even if the parenting responsibilities are
specifically set out, in order to enforce the parenting plan, you have to plan on taking the other parent back to court for a court order, which takes time, money and emotional energy.

The only reasonable conclusion you can come to is that there are no clear answers as to most parenting responsibility decisions, and what legal custody means in any given decision is constantly shifting.  Your best solution?  Start learning negotiation skills and nonengagement skills so that you can avoid the situations if at all possible, and if you can’t avoid the conflict, accept that you might be developing a long term relationship with your lawyer.

What’s the big deal?
After all, “everybody” know what custody means, don’t they?  Actually, what custody means in terms of parental authority is far from clear, and has become less clear as there is a philosophical shift towards encouraging parents to consult and hopefully agree as to how their children should be raised, and what parenting decisions should be made.   Without question, it is far better for kids to have parents who are able to cooperate with each other, and make joint decisions.  As a practical matter, that is sometimes that is easier said than done.  You don’t have control over how another other parent feels or reacts to parenting issues.  You can’t force the other parent to cooperate or even be courteous when
dealing with parenting issues.  When you were married, you presumably had a focus on the good of the entire family and
compromised a great deal to protect the family unit.  When you are getting divorced, each parent is establishing new family unit boundaries.
As you are redefining your relationship with your spouse from spouse to “parenting colleague”, you are also redefining who you are, what you want out of your life, and what you feel is important in making parenting decisions.  This can be a positive step, because often parents compromise more than they should, especially when it comes to the emotional and physical safety of their children.   There is also the reality that it is hard to differentiate between your feelings about the other spouse as a spouse, and your feelings about the other spouse as a parent.  As much as you would like to have a good working relationship with the other parent, sometimes it doesn’t happen for many reasons.  And having therapists, lawyers, judges, mediators and friends all chime in harmony “that you should all just get along” does not make it magically happen, nor is the platitude particularly helpful.

If you are in strong disagreement over parenting decisions, who has legal custody and what legal custody means is very important.  Kids in general need to have a clear set of rules and boundaries from their parents.  The need to have clear rules and boundaries is even more important when you are getting divorced, and the best possible outcome is that kids have two clearly defined sets of rules and boundaries.

As an attorney, I tell my clients that legal custody is the legal authority to make major medical, educational and religious decisions for your child, but that both parents have the authority to make the day-to-day decisions, as well as emergency decisions for their children.  By definition, if the legal custodial parent has the legal authority to make major decisions on medical, education and religious issues, then the non-legal custodial parent does not have that authority.

But what does all of mean in practice?

Stay tuned for my next posting on major parenting decisions and how the definition of “legal custody” affects those decisions.

As a general philosophy, I am a believer in being direct in your communications.   I don’t mean the rude “I don’t want to hurt your feelings but your casserole tastes like dog food” which of course is meant to be rude, regardless of the disclaimer.  I mean being clear in your communication, such as looking someone in the eye, and telling them “You are unlikely to be allowed to move to another state unless your ex-spouse agrees to the move” rather than “ well, there is a long history of cases involving moves which involve differing factors which may or may not apply to your situation and which may give differing results depending on the particular trier of fact.”   The second statement, while accurate, doesn’t immediately give the person you are talking to the needed  information.

So what do I mean by “nonengaging”?  If the purpose of a question or statement is not about communicating, but the real purpose is to engage you in a dialogue that is not productive to you, then responding to that question or statement doesn’t act as communication.  Let me give you an example.  Your soon to be ex-spouse emails you, and asks you if the children got to school on time that morning, since he is sure that you are really out partying and dating and not
taking care of the children.  He really isn’t seeking information, he is seeking to engage you in a conversation in which he can lob innuendos and insults.  This triggers a button with you.  How dare he suggest that you don’t take care of the children?  If you don’t deny that you not out on a date, but were at a PTA meeting, isn’t he going to assume the worst and cause a dramatic scene that will be brought up in court?  You feel you have to immediately email or text back that you were not on a date, you are not dating, you were at a PTA meeting and of course the children were to school on time.  Except that when the purpose of communication is to engage and have interaction with someone, even negative interaction, then your response will just trigger a further response.  He will probably respond  “I don’t believe that you aren’t dating.  The only reason that you could possibly have for wanting a divorce is that you have been having affairs.  God knows who you have been with.”

Don’t engage.
Recognize when communication is not about communication, and just don’trespond.  Don’t respond to the first email asking if the children were to school on time and hinting that you were out on a date.  If the communication does have even a partially legitimate question, such as “I just got a call from the
school wanting to know if the children are absent.  Were you out on a date last night and couldn’t get up on time?” then answer the part that is relevant to the “business” that you have with your ex-spouse.  “Kids are in school, Johnny had a hard time finding his book this morning.” Then stop.  Even if you know that
no matter what you say or don’t say, you are going to get accusations or insults, if your communication doesn’t relate to a “business issue” for you,
then don’t respond.  The emails, texts and phone calls just keep coming and escalating.  And if this kind of dialogue does come up in court, telling the judge that you just couldn’t let it go doesn’t convey a good impression for you, even when you feel that you are on the defensive.

Not engaging is not easy.
For some people, especially if there might be narcissistic personality disorder traits, being ignored is very threatening, and can feel as if the person who is ignoring you doesn’t believe you are a worthwhile person.  The first time you don’t engage, it is not unusual to have the next level of exchange be even more insulting or hostile.  It’s also likely that when you were married, this was a common communication style between you and your spouse.  He or she would make an angry statement, you would become defensive, and before you know it, there is a angry, loud argument going on, and you can’t really identify what the argument is about.

When you choose not to engage in a conversation that is not productive, you are redefining your relationship boundaries.  You are no longer looking to be emotionally intimate, but you need to replace that emotionally intimate relationship with a relationship that is focused on the business issues, usually issues involving your children. This is not easy.  You did not develop your communication pattern overnight with your spouse, and you may not be able to replace that pattern with a more focused communication pattern.  Iin the short run, nonengaging just makes things worse.  In the long run, if you do not provide the negative or positive emotional interaction that is the real issue, your spouse will find someone else to emotionally engage with.  You no longer become fun to play with, and that is exactly what you want as you go forward with the divorce and post divorce interactions.

You should also be aware that if you do not engage, the other parent may engage in a negative manner with your children in order to draw you back into the same old communication pattern.  Your child comes back from a week with your spouse and tells you that Mom kept asking questions about who else was at your house, and if you bought anything new, and that there would be more money to pay support if you weren’t getting a divorce.  You could then engage with your child.  “I can’t believe your Mom said that!  She’s the one that always spends way more money than she should going clothes shopping.”  When you do that, you are not really talking to your child, you are talking to your spouse through your child.  Your child is ten years old and no matter how sophisticated your child thinks she is, the truth is that she is still developmentally a ten year old and doesn’t have the skills to sort through the emotional baggage.  You could go back to your spouse and remind her that in the parenting class, you learned to not put your child in the middle emotionally, and that you suggest that she stop making derogatory comments to the child.  The response is likely to be “What are you talking about?  I was just making conversation!”  After all, you just gave the spouse what your spouse really wanted: emotional engagement with you.  Now that she has been successful in getting you to engage, the same situation will come up again.

When you get that kind of feedback from your child, understand that the real issue is not the words that your child is repeating, but how your child feels.   Focus on that, and ask questions about how your child feels about that statement.  Most of the time what your child wants to tell you is that she feels uncomfortable being asked intrusive questions by either parent.  That is a different issue than what was being directly stated.   If your child becomes insistent on a direct answer on how you spend money, it is very appropriate to tell your child that budgeting is an adult issue, not a child issue, and taking care of the money is your job.

Silence.  Nonengagement.  Sometimes the most effective communication tool you can have.

Assess your needs
Sit down with your current spouse and discuss what you want to accomplish. Make an inventory of each spouse’s assets and discuss how you want these assets distributed after your death. Even if you have a will, your spouse may be able to override the terms and receive a percentage of your estate. Federal law says your spouse is the sole beneficiary of your company pension or profit-sharing plan, unless he or she waives those rights in writing. This means that, even if your children can produce a will giving them the bulk of the estate, the surviving spouse could go to court and demand the spousal share before the provisions of the will are invoked.

Consider a pre nuptial or post nuptial agreement
Pre nuptial agreements allow a future spouse to waive his or her rights to a set share of an estate. Such agreements can be made at any time, but they require informed consent to be binding. Each side should be represented by a lawyer and should make a complete disclosure of individual assets and estimated worth.

Establishing a trust
Trusts are another way to protect your children’s inheritance. Trusts allow you to transmit gifts and inheritances to whomever you choose now or in the future while putting the management of the property under the control of a trustee.

Like a gift with strings attached, you can leave instructions on how the property is to be managed and how it’s to be distributed after you’re gone. When assets are left outright to your spouse, he or she controls the distribution of those assets.

Several trust formats are available. A residual trust offers a unified credit account in which assets may be sheltered from federal estate taxes up to $XXX,XXX. A residual trust may offer income based on interest or an allowance from assets, leaving the remainder of the estate to the bloodline of the originator upon the second spouse’s death. An encroachment provision also may be set up for use of a portion of the principal for education, emergencies, purchase of a car, and other expenses.

A qualified terminable interest property (QTIP) segregates a specific amount to provide an income for a surviving spouse. The principal would be designated as the creator of the trust directs. You may want to use a qualified terminable interest property trust (commonly referred to as a QTIP trust) to protect your children’s interests. Assets you designate are placed in this trust, with income distributed to your spouse during his or her lifetime. Since this qualifies for the unlimited marital deduction, no estate taxes will be paid when you die. After your spouse’s death, the principal is distributed to your heirs.

It may be wise to pick a professional as trustee if a trust has sizable assets. If you wish to place a familiar face on the trust’s administration, appoint a reliable relative or friend as co-trustee. He or she should be able to referee family squabbles.

And finally
Review beneficiary designations and life insurance amounts. These assets will be distributed to your named beneficiaries, regardless of the terms of your estate planning documents. Take a look at these designations to ensure they are coordinated with your estate plan. Also review how much life insurance you have. You may need more to ensure that your heirs are treated equitably.